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NOTE. The First Edition of this work was printed in 
the year 1780; and first published in 1789. The present 
Edition is a careful reprint of A New Edition, corrected 
by the Author, which was published in 1823. 



THE following sheets were, as the note on the opposite page 
expresses, printed so long ago as the year 1780. The design, 
in pursuance of which they were written, was not so extensive 
as that announced by the present title. They had at that time 
no other destination than that of serving as an introduction to 
a plan of a penal code in terminis, designed to follow them, in 
the same volume. 

The body of the work had received its completion according 
to the then present extent of the author s views, when, in the 
investigation of some flaws he had discovered, he found himself 
unexpectedly entangled in an unsuspected corner of the meta 
physical maze. A suspension, at first not apprehended to be 
more than a temporary one, necessarily ensued : suspension 
brought on coolness, and coolness, aided by other concurrent 
I causes, ripened into disgust. 

Imperfections pervading the whole mass had already been 
pointed out by the sincerity of severe and discerning friends 
and conscience had certified the justness of their censure. The 
inordinate length of some of the chapters, the apparent inutility 
of others, and the dry and metaphysical turn of the whole 
suggested an apprehension, that, if published in its present 
form, the work would contend under great disadvantages for 
any chance, it might on other accounts possess, of being read, 
and consequently of being of use. 

But, though in this manner the idea of completing the pre 
sent work slid insensibly aside, that was not by any means the 
case with the considerations which had led him to engage in it 
Every opening, which promised to afford the lights he stood in 
| need of, was still pursued : as occasion arose, the several depart- 
j ments connected with that in which he had at first engaged 
j were successively explored; insomuch that, in one branch or 
Per of the pursuit, his researches have nearly embraced the 
whole field of legislation. 

a 2 

i v Preface. 

Several causes have conspired at present to bring to light, 
under this new title, a work which under its original one had 
been imperceptibly, but as it had seemed irrevocably, doomed 
to oblivion. In the course of eight years, materials for various 
works, corresponding to the different branches of the subject of 
legislation, had been produced, and some nearly reduced to shape : 
and, in every one of those works, the principles exhibited in the 
present publication had been found so necessary, that, either to 
transcribe them piece-meal, or to exhibit them somewhere where 
they could be referred to in the lump, was found unavoidable. 
The former course would have occasioned repetitions too bulky 
to be employed without necessity in the execution of a plan 
unavoidably so voluminous : the latter was therefore indisputably 
the preferable one. 

To publish the materials in the form in which they were 
already printed, or to work them up into a new one, was therefore 
the only alternative : the latter had all along been his wish, and, 
had time and the requisite degree of alacrity been at command, 
it would as certainly have been realised. Cogent considerations, 
however, concur, with the irksomeness of the task, in placing the 
accomplishment of it at present at an unfathomable distance. 

Another consideration is, that the suppression of the present 
work, had it been ever so decidedly wished, is no longer altogether 
in his power. In the course of so long an interval, various inci 
dents have introduced copies into various hands, from some of 
which they have been transferred, by deaths and other accidents, 
into others that are unknown to him. Detached, but considerable 
extracts, have even been published, without any dishonourable 
views, (for the name of the author was very honestly subjoined 
to them,) but without his privity, and in publications undertaken 
without his knowledge. 

It may perhaps be necessary to add, to complete his excuse for 
offering to the public a work pervaded by blemishes, which have 
not escaped even the author s partial eye, that the censure, so 
justly bestowed upon the form, did not extend itself to the matter. 
In sending it thus abroad into the world with all its imper 
fections upon its head, he thinks it may be of assistance to the 
few readers he can expect, to receive a short intimation of the 

Preface. v 

chief particulars, in respect of which it fails of corresponding 
with his maturer views. It will thence be observed how in some 
respects it fails of quadrating with the design announced by its 
original title, as in others it does with that announced by the 
one it bears at present. 

An introduction to a work which takes for its subject the 
totality of any science, ought to contain all such matters, and 
such matters only, as belong in common to every particular 
branch of that science, or at least to more branches of it than 
one. Compared with its present title, the present work fails in 
both ways of being conformable to that rule. 

As an introduction to the principles of morals, in addition to 
the analysis it contains of the extensive ideas signified by the 
terms pleasure, pain, motive, and disposition, it ought to have 
given a similar analysis of the not less extensive, though much less 
determinate, ideas annexed to the terms emotion, passion, appetite, 
virtue, vice, and some others, including the names of the particular 
virtues and vices. But as the true, and, if he conceives right, 
the only true ground-work for the development of the latter set of 
terms, has been laid by the explanation of the former, the com 
pletion of such a dictionary, so to style it, would, in comparison of 
the commencement, be little more than a mechanical operation. 

Again, as an introduction to the principles of legislation in 
general, it ought rather to have included matters belonging 
exclusively to the civil branch, than matters more particularly 
applicable to the penal : the latter being but a means of com 
passing the ends proposed by the former. In preference there 
fore, or at least in priority, to the several chapters which will be 
found relative to punishment, it ought to have exhibited a set of 
propositions which have since presented themselves to him as 
affording a standard for the operations performed by govern 
ment, in the creation and distribution of proprietary and other 
civil rights. He means certain axioms of what may be termed 
mental pathology, expressive of the connection betwixt the 
feelings of the parties concerned, and the several classes of 
incidents, which either call for, or are produced by, operations 
of the nature above mentioned 1 . 

1 For example. It is worse to lose than simply not to gain. A loss falls 

vi Preface. 

The consideration of the division of offences, and every thing 
else that belongs to offences, ought, besides, to have preceded 
the consideration of punishment : for the idea of punishment 
presupposes the idea of offence : punishment, as such, not being 
inflicted but in consideration of offence. 

Lastly, the analytical discussions relative to the classification 
of offences would, according to his present views, be transferred 
to a separate treatise, in which the system of legislation is con 
sidered solely in respect of its form : in other words, in respect 
of its method and terminology. 

In these respects the performance fails of coming up to the 
author s own ideas of what should have been exhibited in 
a work, bearing the title he has now given it, viz. that of an 
Introduction to the Principles of Morals and Legislation. He 
knows however of no other that would be less unsuitable : nor 
in particular would so adequate an intimation of its actual 
contents have been given, by a title corresponding to the more 
limited design, with which it was written : viz, that of serving 
as an introduction to a penal code. 

Yet more. Dry and tedious as a great part of the discussions 
it contains must unavoidably be found by the bulk of readers, 
he knows not how to regret the having written them, nor even 
the having made them public. Under every head, the prac 
tical uses, to which the discussions contained under that head 
appeared applicable, are indicated : nor is there, he believes, 
a single proposition that he has not found occasion to build upon 
in the penning of some article or other of those provisions of 
detail, of which a body of law, authoritative or unauthoritative, 
must be composed. He will venture to specify particularly, in 
this view, the several chapters shortly characterized by the 
words Sensibility, Actions, Intentiondlity , Consciousness, Motives, 
Dispositions, Consequences. Even in the enormous chapter on 

ike lighter by being divided. The suffering, of a person hart in gratification 
of enmity, is greater than the gratification produced by the same cause. 
These, and a few others which he will have occasion to exhibit at the head 
of another publication, have the same claim to the appellation of axioms, 
as those given by mathematicians under that name ; since, referring to 
universal experience as their immediate basis, they are incapable of demon 
stration, and require only to be developed and illustrated, in order to be 
recognised as incontestable. 

Preface. vii 

the division of offences, which, notwithstanding the forced com 
pression the plan has undergone in several of its parts, in manner 
there mentioned, occupies no fewer than one hundred and four 
closely printed quarto pages 1 , the ten concluding ones are 
employed in a statement of the practical advantages that may 
be reaped from the plan of classification which it exhibits. 
Those in whose sight the Defence of Usury has been fortunate 
enough to find favour, may reckon as one instance of those 
advantages the discovery of the principles developed in that little 
treatise. In the preface to an anonymous tract published so 
long ago as in I776 2 , he had hinted at the utility of a natural 
classification of offences, in the character of a test for distin 
guishing genuine from spurious ones. The case of usury is one 
among a number of instances of the truth of that observation. 
A note at the end of Sect. xxxv. Chap. xvi. of the present publica 
tion, may serve to show how the opinions, developed in that tract, 
owed their origin to the difficulty experienced in the attempt to 
find a place in his system for that imaginary offence. To some 
readers, as a means of helping them to support the fatigue of 
wading through an analysis of such enormous length, he would 
almost recommend the beginning with those ten concluding pages. 
One good at least may result from the present publication ; 
viz. that the more he has trespassed on the patience of the 
reader on this occasion, the less need he will have so to do on 
future ones : so that this may do to those, the office which is 
done, by books of pure mathematics, to books of mixed mathe 
matics and natural philosophy. The narrower the circle of 
readers is, within which the present work may be condemned 
to confine itself, the less limited may be the number of those to 
whom the fruits of his succeeding labours may be found acces 
sible. He may therefore in this respect find himself in the con 
dition of those philosophers of antiquity, who are represented 
as having held two bodies of doctrine, a popular and an occult 
one: but, with this difference, that in his instance the occult 
and the popular will, he hopes, be found as consistent as in those 
they were contradictory; and that in his production whatever 

1 The first edition was published in 1789, in quarto. 

2 A Fragment on Government, &c., reprinted 1822. 

viii Preface. 

there is of occultness has been the pure result of sad necessity, 
and in no respect of choice. 

Having, in the course of this advertisement, had such frequent 
occasion to allude to different arrangements, as having been 
suggested by more extensive and maturer views, it may perhaps 
contribute to the satisfaction of the reader, to receive a short 
intimation of their nature : the rather, as, without such explana 
tion, references, made here and there to unpublished works, 
might be productive of perplexity and mistake. The following 
then are the titles of the works by the publication of which his 
present designs would be completed. They are exhibited in the 
order which seemed to him best fitted for apprehension, and in 
which they would stand disposed, were the whole assemblage 
ready to come out at once : but the order, in which they will 
eventually appear, may probably enough be influenced in some 
degree by collateral and temporary considerations. 

Part the ist. Principles of legislation in matters of civil, 
more distinctively termed private distributive, or for shortness, 
distributive, law. 

Part the 2nd. Principles of legislation in matters of penal law. 

Part the 3rd. Principles of legislation in matters of pro 
cedure: uniting in one view the criminal and civil branches, 
between which no line can be drawn, but a very indistinct one, 
and that continually liable to variation. 

Part the 4th. Principles of legislation in matters of reward. 

Part the 5th. Principles of legislation in matters of public 
distributive, more concisely as well as familiarly termed constitu 
tional, law. 

Part the 6th. Principles of legislation in matters of political 
tactics : or of the art of maintaining order in the proceedings of 
political assemblies, so as to direct them to the end of their 
institution : viz. by a system of rules, which are to the constitu 
tional branch, in some respects, what the law of procedure is to 
the civil and the penal. 

Part the 7th. Principles of legislation in matters betwixt 
nation and nation, or, to use a new though not inexpressive 
appellation, in matters of international law. 

Part the 8th. Principles of legislation in matters of finance. 

Preface. ix 

Part the 9th. Principles of legislation in matters of political 

Part the loth. Plan of a body of law, complete in all its 
branches, considered in respect of its form; in other words, in 
respect of its method and terminology ; including a view of the 
origination and connexion of the ideas expressed by the short list 
of terms, the exposition of which contains all that can be said 
with propriety to belong to the head of universal jurisprudence 1 . 

The use of the principles laid down under the above several 
heads is to prepare the way for the body of law itself exhibited 
in terminis; and which to be complete, with reference to any poli 
tical state, must consequently be calculated for the meridian, and 
adapted to the circumstances, of some one such state in particular. 

Had he an unlimited power of drawing upon time, and every 
other condition necessary, it would be his wish to postpone the 
publication of each part to the completion of the whole. In 
particular, the use of the ten parts, which exhibit what appear 
to him the dictates of utility in every line, being no other than 
to furnish reasons for the several corresponding provisions con 
tained in the body of law itself, the exact truth of the former 
can never be precisely ascertained, till the provisions, to which 
they are destined to apply, are themselves ascertained, and that 
in terminis. But as the infirmity of human nature renders all 
plans precarious in the execution, in proportion as they are 
extensive in the design, and as he has already made considerable 
advances in several branches of the theory, without having made 
correspondent advances in the practical applications, he deems it 
more than probable, that the eventual order of publication will 
not correspond exactly with that which, had it been equally 
practicable, would have appeared most eligible. Of this irregu 
larity the unavoidable result will be, a multitude of imperfec 
tions, which, if the execution of the body of law in terminis had 
kept pace with the development of the principles, so that each 
part had been adjusted and corrected by the other, might have 
been avoided. His conduct however will be the less swayed by 
this inconvenience, from his suspecting it to be of the number of 

1 Such as obligation, right, power, possession, title, exemption, immunity, 
franchise, privilege, nullity, validity, and the like. 

x Preface. 

those in which the personal vanity of the author is much more 
concerned, than the instruction of the public: since whatever 
amendments may be suggested in the detail of the principles, 
by the literal fixation of the provisions to which they are rela 
tive, may easily be made in a corrected edition of the former, 
succeeding upon the publication of the latter. 

In the course of the ensuing pages, references will be found, 
as already intimated, some to the plan of a penal code to which 
this work was meant as an introduction, some to other branches 
of the above-mentioned general plan, under titles somewhat 
different from those, by which they have been mentioned here. 
The giving this warning is all which it is in the author s power 
to do, to save the reader from the perplexity of looking out for 
what has not as yet any existence. The recollection of the 
change of plan will in like manner account for several similar 
incongruities not worth particularising. 

Allusion was made, at the outset of this advertisement, to 
some unspecified difficulties, as the causes of the original suspen 
sion, and unfinished complexion, of the present work. Ashamed 
of his defeat, and unable to dissemble it, he knows not how to 
refuse himself the benefit of such an apology as a slight sketch 
of the nature of those difficulties may afford. 

The discovery of them was produced by the attempt to solve 
the questions that will be found at the conclusion of the volume: 
Wherein consisted the identity and completeness of a law ? What 
the distinction) and where the separation, between a penal and 
a civil law ? What the distinction) and where the separation, 
between the penal and other branches of the law ? 

To give a complete and correct answer to these questions, it 
is but too evident that the relations and dependencies of every 
part of the legislative system, with respect to every other, must 
have been comprehended and ascertained. But it is only upon 
a view of these parts themselves, that such an operation could 
have been performed. To the accuracy of such a survey one 
necessary condition would therefore be, the complete existence of 
the fabric to be surveyed. Of the performance of this condition 
no example is as yet to be met with any where. Common law, 
as it styles itself in England, judiciary law, as it might more 

Preface. xi 

aptly be styled every where, that fictitious composition which 
has no known person for its author, no known assemblage of 
words for its substance, forms every where the main body of the 
legal fabric : like that fancied ether, which, in default of sensible 
matter, fills up the measure of the universe. Shreds and scraps 
of real law, stuck on upon that imaginary ground, compose the 
furniture of every national code. What follows 1 that he who, 
for the purpose just mentioned or for any other, wants an example 
of a complete body of law to refer to, must begin with making one. 

There is, or rather there ought to be, a logic of the will, as 
well as of the understanding : the operations of the former 
faculty, are neither less susceptible, nor less worthy, than those 
of the latter, of being delineated by rules. Of these two branches 
of that recondite art, Aristotle saw only the latter : succeeding 
logicians, treading in the steps of their great founder, have con 
curred in seeing with no other eyes. Yet so far as a difference 
can be assigned between branches so intimately connected, what 
ever difference there is, in point of importance, is in favour of 
the logic of the will. Since it is only by their capacity of direct 
ing the operations of this faculty, that the operations of the 
understanding are of any consequence. 

Of this logic of the will, the science of law, considered in 
respect of its form, is the most considerable branch, the most 
important application. It is, to the art of legislation, what the 
science of anatomy is to the ait of medicine : with this difference, 
that the subject of it is what the artist has to work with, instead 
of being what he has to operate upon. Nor is the body politic 
less in danger from a want of acquaintance with the one science, 
than the body natural from ignorance in the other. One 
example, amongst a thousand that might be adduced in proof 
of this assertion, may be Been in the note which terminates 
this volume. 

Such then were the difficulties : such the preliminaries : an 
unexampled work to achieve, and then a new science to create : 
a new branch to add to one of the most abstruse of sciences. 

Yet more : a body of proposed law, how complete soever, would 
be comparatively useless and uninstructive, unless explained and 
justified, and that in every tittle, by a continued accompaniment, 

xii Preface. 

a perpetual commentary of reasons l : which reasons, that the 
comparative value of such as point in opposite directions may 
be estimated, and the conjunct force, of such as point in the 
same direction, may be felt, must be marshalled, and put under 
subordination to such extensive and leading ones as are termed 
principles. There must be therefore, not one system only, but 
two parallel and connected systems, running on together, the 
one of legislative provisions, the other of political reasons, each 
affording to the other correction and support. 

Are enterprises like these achievable 1 He knows not. This 
only he knows, that they have been undertaken, proceeded in, 
and that some progress has been made in all of them. He will 
venture to add, if at all achievable, never at least by one, to 
whom the fatigue of attending to discussions, as arid as those 
which occupy the ensuing pages, would either appear useless, or 
feel intolerable. He will repeat it boldly (for it has been said 
before him), truths that form the basis of political and moral 
science are not to be discovered but by investigations as severe 
as mathematical ones, and beyond all comparison more intricate 
and extensive. The familiarity of the terms is a presumption, 
but it is a most fallacious one, of the facility of the matter. 
Truths in general have been called stubborn things : the truths 
just mentioned are so in their own way. They are not to be 
forced into detached and general propositions, unincumbered 
with explanations and exceptions. They will not compress 
themselves into epigrams. They recoil from the tongue and 
the pen of the declaimer. They flourish not in the same soil 
with sentiment. They grow among thorns; and are not to 
be plucked, like daisies, by infants as they run. Labour, the 
inevitable lot of humanity, is in no track more inevitable than 
here. In vain would an Alexander bespeak a peculiar road for 
royal vanity, or a Ptolemy, a smoother one, for royal indolence. 
There is no King s Road, no Stadiholder s Gate, to legislative, 
any more than to mathematic science. 

1 To the aggregate of them a common denomination has since been 
allotted the rationale. 


% CHAPTER I. ^/ 



Mankind governed by pain and pleasure ... i 

Principle of utility, what . . . . . .2 

A principle, what . . . . . .2 

Utility, what ........ 2 

Interest of the community, what . . . . .2 

An action conformable to the principle of utility, what . . 3 

A measure of government conformable to the principle of utility, 

what ........ 3 

Laws or dictates of utility, what . . . . .3 

A partisan of the principle of utility, -who . . . 3 

Ought, ought not, right and wrong, &c., how to be understood . 3 

To prove the rectitude of this principle is at once unnecessary and im 
possible ........ 4 

It has seldom, however, as yet, been consistently pursued . . 4 

It can never be consistently combated . . . . -4 

Course to be taken for surmounting prejudices that may have been 

entertained against it . . . . 5 



All other principles than that of utility must be wrong . , 8 

Ways in which a principle may be wrong . . . .8 

Asceticism, origin of the word . . . .8 

Principles of the Monks . . . . .8 

Principle of asceticism, what . . . . . 9 

A partisan of the principle of asceticism, who . . . 9 

This principle has had in some a philosophical, in others a religious 

origin ........ 9 

It has been carried farther by the religious party than by the philo 
sophical ........ 10 

The philosophical branch of it has had most influence among per 
sons of education, the religious among the vulgar . . .10 
The principle of asceticism has never been steadily applied by either 

party to the business of government . . . .11 

The principle of asceticism, in its origin, was but that of utility 

misapplied . . . . . . . .12 

xiv Contents. 


It can never be consistently pursued . . . J 3 

The principle of sympathy and antipathy, what 13 

This is rather the negation of all principle, than any thing positive . 16 
Sentiments of a partisan of the principle of antipathy . . .16 

The systems that have been formed concerning the standard of right 

and wrong, are all reducible to this principle . . . 17 

Various phrases, that have served as the characteristic 

marks of so many pretended systems . . J 7 

1. Moral Sense ... T 7 

2. Common Sense . . . . . I 7 

3. Understanding . . . . . 17 

4. Rule of Right . . . . . .17 

5. Fitness of Things . . . . 17 

6. Law of Nature . . . . . .18 

7. Law of Reason, Right Reason, Natural Justice, Natural 

Equity, and Good Order . . . . .18 

8. Truth ....... 18 

9. Doctrine of Election . . . .18 
10. Repugnancy to Nature . .18 

Mischief they produce . .18 

Whether utility is actually the sole ground of all the appro 
bation we ever bestow, is a different consideration . 19 
This principle will frequently coincide with that of utility . .18 
This principle is most apt to err on the side of severity . . 20 
But errs, in some instances, on the side of lenity . . .21 
The theological principal, what not a separate principle . .21 
The principle of theology how reducible to one or another of 

the other three principles . . .22 

Antipathy, let the actions it dictates be ever so right, is never of itself 

a right ground of action . . . . .22 



Connexion of this chapter with the preceding . .24 

Four sanctions or sources of pleasure and pain . .24 

1 . The physical sanction . . 2 5 

2. The political . . . 2 5 

3. The moral or popular . 2 5 

4. The religious . 2 5 
The pleasures and pains which belong to the religious sanction, may 

regard either the present life or a future . .25 




Those which regard the present life, from which soever source they 

flow, differ only in the circumstances of their production . . 26 

Example . . . . . . . .26 

Those which regard a future life are not specifically known . .27 

The physical sanction included in each of the other three . .27 

Use of this chapter . . . . . . .27 



Use of this chapter . . . . . . 20 

Circumstances to be taken into the account in estimating the value of 
a pleasure or pain considered with reference to a single person, 

and by itself . ,20 

considered as connected with other pleasures or pains . . 29 

considered with reference to a number of persons . . -30 
Process for estimating the tendency of any act or event . . 30 
Use of the foregoing process . . . . . -31 
The same process applicable to good and evil, profit and mischief, and 

all other modifications of pleasure and pain . . -31 

Conformity of men s practice to this theory . . .32 



Pleasures and pains are either, i. Simple ; or 2. Complex . .33 

The simple pleasures enumerated . . . -33 

The simple pains enumerated . . . . -33 

Analytical view, why none given . . . -34 

1. Pleasures of sense enumerated .... 34 

2. Pleasures of wealib, which are either of acquisition, or of 

possession ..... 04 

3. Pleasures of skill . . . , . .34 

4. Pleasures of am ity .... oc 

5. Pleasures of a good name . . . . -35 

6. Pleasures of power . . . . . 35 

7. Pleasures of piety .... -35 

8. Pleasures of benevolence or good-will . . -36 

9. Pleasures of malevolence or ill-will . . .36 
10. Pleasures of the memory . . . . .36 
u. Pleasures of the imagination . . . . .36 

xvi Contents. 


12. Pleasures of expectation 3^ 

13. Pleasures depending on association . . 37 

14. Pleasures of re lief . . -37 

1. Pains of privation . -37 
These include, i. Pains of desire 3 8 

2. Pains of disappointment . . 3 8 

3. Pains of regret . . . 3 8 

2. Pains of the senses . 3 8 

No positive pains correspond to the pleasure of the sexual 

sense . . . 3 8 

3. Pains of aivTcwardness . . . -39 

No positive pains correspond to the pleasure of novelty . 39 
nor to those of wealth ... .39 

Is this a distinct positive pain, or only a pain of privation ? . 39 

4. Pains of enmity . 39 

5. Pains of an ill-name . . -39 

The positive pains of an ill-name, and the pains of privation, 
opposed to the pleasures of a good name, run into one 
another ... 39 

6. Pains of piety . 4 

No positive pains correspond to the pleasures of power . 40 
The positive pains of piety, and the pains of privation, 

opposed to the pleasures of piety, run into one 

another . 

7. Pains of benevolence 

8. Pains of malevolence 

9. Pains of the memory 

10. Pains of the imagination 

1 1 . Pains of expectation 

12. Pains of association . 
Pleasures and pains are either self-regarding or extra-regarding 

Pleasures and pains of amity and enmity distinguished from 

those of benevolence and malevolence . .41 

In what way the law is concerned with the above pains and pleasures 41 

Complex pleasures and pains omitted, why . .41 

Specimen. Pleasures of a country prospect . . .42 



Pain and pleasure not uniformly proportioned to their causes . . 43 

Degree or quantum of sensibility, what 43 

Bias or quality of sensibility, what . -43 

Exciting causes pleasurable and dolorijic . 44 

Contents. xvii 


Circumstances influencing sensibility, what . . . .44 

Circumstances influencing sensibility enumerated . . .44 
Extent and intricacy of this subject . 

1. Health ....... 45 

2. Strength ...... .5 

Measure of strength, the weight a man can lift . . 46 

Weakness, what . . . . . .46 

3. Hardiness . . . . . t .46 
Difference between strength and hardiness ... 47 

4. Bodily imperfection ..... 47 

5. Quantity and quality of knowledge . . . 47 

6. Strength of intellectual powers ... .48 

7. Firmness of mind .... 48 

8. Steadiness . . . . . t _ 

9. .Ben of inclinations ... 4 q 
10. Moral sensibility .... 40 
1 1 . Moral biases - .... co 

12. Religious sensibility ..... co 

13. Religious biases ...... e O 

14. Sympathetic sensibility ... c o 

15. Sympathetic biases .... c O 
1 6, 17. Antipathetic sensibility and fo ase* . . . . 5I 

18. Insanity ..... c r 

19. Habitual occupations . . . . 51 

20. Pecuniary circumstances . . c 2 

21. Connexions in the way of sympathy . . . .53 

22. Connexions in the way of antipathy . 55 

23. Radical /mm e of 6o<fy . . . . . 55 

24. Radical frame of mind .... . 5 6 

Idiosyncrasy, what . . . . . gg 

This distinct from the circumstance of frame of body . . .56 

Whether the soul be material or immaterial makes no 

difference . . . . . . 5 g 

and from all others .... ." *S7 

iTet the result of them is not separately discernible . . -57 

?rame of body indicates, but not certainly, that of mind . 57 

Secondary influencing circumstances eR 

5. sex ..... : : : 58 

6- Age ..... 

28. Education ..... .60 

29. Climate . ... 6 T 

30. Lineage ...... g 2 

31. Government ... 5, 

32. Reliyiou* profession . . . . . 5^ 


xviii Contents. 


Use of the preceding observations . . . . 64 

How far the circumstances in question can be taken into account . 65 
To what exciting causes there is most occasion to apply them . . 66 

Analytical view of the circumstances influencing sensibility . . 68 

Analytical view of the constituent articles in a man s pe 
cuniary circumstances . . . . .69 



The demand for punishment depends in part upon the tendency of 

the act 

Tendency of an act determined by its consequences 
Material consequences only are to be regarded 
These depend in part upon the intention .... 

The intention depends as well upon the understanding as the will 
/In an action are to be considered, I. The act. 2. The circumstances. 
3. The intentionality. 4. The consciousness. 5. The motives. 
6. The disposition .... ... 

-" Acts positive and negative ...... 

Acts of omission are still acts .... 

Negative acts may be so relatively or absolutely 

Negative acts may be expressed positively ; and vice versa 

Acts external and internal ...... 

Acts of discourse, what ....... 

External acts may be transitive or intransitive .... 

Distinction between transitive acts and intranbitive, recog 
nised by grammarians ..... 

A transitive act, its commencement, termination, and intermediate 
progress ........ 

An intransitive act, its commencement, and termination 

Acts transient and continued ...... 

Difference between a continued act and a repetition of acts 
Difference between a repetition of acts and a habit 
Acts are indivisible, or divisible, and divisible, as well with regard to 
matter as to motion ...... 

Caution respecting the ambiguity of language .... 

Circumstances are to be considered ..... 

"" Circumstances, what ..... 

Circumstance, archetypation of the word 
Circumstances, material and immaterial .... 

Contents. xix 


A circumstance may be related to an event in point of causality, 
in four ways, viz. I. Production. 2. Derivation. 3. Collateral 
connexion. 4. Conjunct influence . . . -77 

Example. Assassination of Buckingham . . . -78 

It is not every event that has circumstances related to it in all those 

waya . . . . 79 

tlse of this chapter . . . . . . .80 



Recapitulation * . . .82 

The intention may regard, i. The act: or, 2. The consequences . 82 

Ambiguity of the words voluntary and involuntary . . 82 

It may regard the act without any of the consequences . . 83 

or the consequences without regarding the act in all its stages . 83 

but not without regarding fhe first stage . . . .83 

An act unintentional in its first stage, may be so with 
respect to I. Quantity of matter moved : 2. Direction: 
3. Velocity . . . . . .83 

A consequence, when intentional, may be directly so, or obliquely . 84 
When directly, ultimately so, or mediately . . . .84 

When directly intentional, it may be exclusively so, or inexclusively . 85 
When inexclusively, it may be conjunctively, disjunctively, or indis 
criminately so . . . . . 85 

When disjunctively, it may be with or without preference . . 85 

Difference between an incident s being unintentional, and 
disjunctively intentional, when the election is in favour 
of the other . . . . . .85 

Example .... .85 

Intentionality of the act with respect to its different stages, how far 

material ...... . . 87 

Good ness and badness of intention dismissed . . . -87 



Connexion of this chapter with the foregoing . .89 

Acts advised and unadvised ; consciousness, what . . 89 

Unadvisedness may regard either existence, or materiality . . 89 

The circumstance may have been present, past, or future . 89 

An unadvised act may be heedless, or not heedless . . 89 

A misadvised act, what, a missupposal . . . .90 

b 2 




The supposed circumstance might have been material in the way 

either of prevention or of compensation . . . .00 

It may have been supposed present, past, or future . . .90 

Example, continued from the last chapter . . . .90 

In what case consciousness extends the intentionality from the act to 

the consequences ..... 01 

Example continued ..... 9 2 

A misadvised act may be rash or not rash . . . .92 

The intention may be good or bad in itself, independently of the 

motive as well as the eventual consequences . . 92 

It is better, when the intention is meant to be spoken of as being good 

or bad, not to say, the motive . . . . -93 

Example ... . . 93 

Intention, in what cases it may be innocent . . . -94 

Intentionality and consciousness, how spoken of in the Roman law . 94 
Use of this and the preceding chapter . , . 95 



i. Different senses of the word Motive. 

Motives, why considered . . . , . -97 

Purely speculative motives have nothing to do here . . -97 

- Motives to the will ....... 98 

Figurative and unfigurative senses of the word . . .98 

Motives interior and exterior ...... 99 

Motive in prospect motive in esse . . . . .99 

Motives immediate and remote . , . , .100 

Motives to the understanding how they may influence the will . 101 

2. No Motives either constantly good or constantly bad. 
Nothing can act of itself as a motive, but the idea of pleasure or pain 101 
No sort of motive is in itself a bad one . . . .102 

" Inaccuracy of expressions in which good or bad are applied to motives 102 
Any sort of motive may give birth to any sort of act . . .102 

Difficulties which stand in the way of an analysis of this sort . 103 

3. Catalogue of Motives corresponding to that of Pleasures 

and Pains. 

Physical desire corresponding to pleasures of sense in general . 105 

The motive corresponding to the pleasures of the palate . . 105 

Contents. xx j 

Sexual desire corresponding to the pleasures of the sexual sense 106 

Curiosity, &c. corresponding to the pleasures of curiosity . .10- 

None to pleasures of sense ... ,1 

Pecuniary interest to the pleasures of wealth . . lo:7 
None to the pleasures of skill . . 

To the pleasures of amity, the desire of ingratiating one s self 107 

To the pleasures of a 0ood name, the /ore of reputation . .108 

To the pleasures of power, the Zove of power . IIO 

The wo^ ve belonging to the religious sanction T : z 

Good-will, &c. to the pleasures of sympathy . . j T 2 

Ill-will, &c. to the pleasures of antipathy . . . II4 

Self-preservation, to the several kinds of pains . x T 

To the .pains of exertion, the love of ease . . ny 
Motives can only be lad with reference to the most frequent com- 

plexion of their effects ... jjg 
How it is that motives, such as Imt, avarice, &c., are constantly lad . 1 18 
Under the above restrictions, motives may be distinguished into good , 

lad, and indifferent or neutral . . . . II9 
Inconveniences of this distribution 

It is^only in individual instances that motives can be good or bad . 120 

^Motives distinguished into social, dissocial, and self-regarding . I2O 

social, into purely-social, and semi-social , . I2I 

4. Order of pre-eminence among Motives. 
The dictates of good-will are the surest of coinciding with those of 

utm y - I2I 

Laws and dictates conceived as issuing from motives 121 

Yet do not in all cases . .... I2I 

Next to them come those of the love of reputation . 122 

Next those of the desire of amity ... I24 
Difficulty of placing those of religion . 

Tendency, they have to improve ... I2 g 

! Afterwards come the self -regarding motives: and, lastly, that of 

displeasure <.... I27 

5 Conflict among Motives. 

Motives impelling and restraining, what . . . .127 

vVhat are the motives most frequently at variance . 128 

Sxample to illustrate a struggle among contending motives . [128 

Practical use of the above disquisitions relative to mqtjLxes^ 120 

xxii Contents. 




/^Disposition, what . . . . . . . I3 1 

, How far it belongs to the present subject . . . I 3 I 

A mischievous disposition ; a meritorious disposition ; what . . 132 

What a man s disposition is, can only be matter of presumption . 132 

It depends upon what the act appears to be to him . . . 132 
Which position is grounded on two facts : I. The correspondence 

between intentions and consequences . . . T 33 

/- 2. Between the intentions of the same person at different times . 133 
A disposition, from which proceeds a habit of doing mischief, 

cannot be a good one . . . . . 133 

The disposition is to be inferred, i. From the apparent tendency of the 

act: 2. From the nature of the motive .... 133 

Case i. Tendency, good motive, self-regarding . . J 34 

Case 2. Tendency, bad motive, self-regarding r . J 34 

Case 3. Tendency, good motive, good-will . . . .134 

Case 4. Tendency, bad motive, good-will ,. I 35 

This case not an impossible one . . . . . 135 

Example I. ..... . 135 

Example II. ... . 135 

Example III. ..... .136 

Cases. Tendency, pood motive, love of reputation . . . 136 

The bulk of mankind apt to depreciate this motive . -136 

Case 6. Tendency, bad motive, honour . . 137 

Example I. ...... r 37 

Example II . - 138 

Casey. Tendency, good motive, piety , 138 

Case 8. Tendency, bad motive, religion . . .138 

The disposition may be bad in this case . . . J 39 

Case 9. Tendency, good motive, malevolence < . .140 

Example .... .140 

Case 10. Tendency, bad motive, malevolence . . 141 

- Example . .141 

/"Problem to measure the depravity in a man s disposition . . 141 

^-A man s disposition is constituted by the sum of his intentions . 142 

which owe their birth to motives . . .142 

A seducing or corrupting motive, what a tutelary or preservatory 

motive ... .142 

Tutelary motives are either standing or occasional . .142 

Contents. xxiii 


Standing tutelary motives are, i. Good-will . . . 143 

2. The love of reputation . . 143 

3. The desire of amity . . 144 

4. The motive of religion . J 44 
\0ccasional tutelary motives way be any whatsoever . . 145 
jMotives that are particularly apt to act in this character are, I. Love 

of ease. 2. Self-preservation . J 45 

Dangers to which self-preservation is most apt in this case to have 

respect, are, i. Dangers purely physical 2. Dangers depending 

on detection . . . . .146 

Danger depending on detection may result from, i. Opposition on 

the spot : 2. Subsequent punishment .... 146 
The force of the two standing tutelary motives of love of reputation, 

and desire of amity, depends upon detection . . .146 

Strength of a temptation, what is meant by it . M7 

Indications afforded by this and other circumstances respecting the 

depravity of an offender s disposition . . .148 

Rules for measuring the depravity of disposition indicated by an 

offence ... J 49 

Use of this chapter . . . . . I 5 I 



i . Shaiies in which the mischief of an Act may show itself. 

Recapitulation . J 5 2 

Mischief of an act, the aggregate of its mischievous consequences . 152 

The mischief of an act, primary or secondary . . I5 2 

Primary original or derivative, J 53 

The secondary i. Alarm: or, 2. Danger . . 153 

Example . I 53 

The danger whence it arises a past offence affords no direct motive 

to & future .... J 55 

But it suggests feasibility, and weakens the force of restraining 

motives . . *55 

viz. i. Those issuing from the political sanction . .155 

2. Those issuing from the moral . 156 

It is said to operate by the influence of example . 156 

The alarm and the danger, though connected, are distinguishalle . 157 

Both may have respect to the same person, or to others . 157 

The primary consequences of an act may be mischievous, and the 

secondary, "beneficial . J 57 

xxiv Contents. 


Analysis of the different shapes in which the mischief of an act may 

show itself ..... z .3 

applied to the preceding cases . . . . .159 

to examples of other cases where the mischief is less conspicuous . 159 
Example!. An act of self-intoxication . . . .159 
Example II. Non-payment of a tax ... x6 o 
No alarm, when no assignable person is the object . . ifo 

2. How intentionalitij, $c. may influence the mischief of 
an Act. 

Secondary mischief influenced by the state of the agent s mind . 163 
Case i. Tncoluntariness .... 164 

Case 2. Unintentionality with heedlessness . . . ^^ 

Case 3. Missupposal of a complete justification, without rashness . 165 
Case 4. Missupposal of a partial justification, without rashness . 165 
Cases. Missupposal, with rashness . . . . jg- 

Case 6. Consequences completely intentional, and free from mis- 

supposal . ... .165 

The nature of a motive takes not away the mischief of the secondary 

consequences .... jge 

Nor the beneficialness ..... jgg 

But it may aggravate the mischievousness, where they are mis- 

chievous . . . . . 166 

But not the most in the case of the worst motives . 166 

It does the more, the more considerable the tendency of the motive 

to produce such acts ... 167 

which is as its strength and constancy . . . .167 
General efficacy of a species of motive, how measured . .167 
A mischievous act is more so, when issuing from a self-regarding 

than when from a dissocial motive . . . .167 

so even when issuing from the motive of religion . . 168 
How the secondary mischief is influenced by disposition . .168 
Connexion of this with the succeeding chapter . . .168 



i . General view of cases unmeet for Punishment. 

The end of law is, to augment happiness . . . ,170 

But punishment is an evil . . . . . . 1 70 

Contents. xxv 


What concerns the end, and several other topics, relative to 

punishment, dismissed to another work . . .170 

Concise view of the ends of punishment . . .170 

Therefore ought not to be admitted . . . . .171 

i. Where groundless. ...... 171 

a. Inefficacious . . . . . . 171 

3. Unprofitable . . . . . . . ITI 

4. Or needless . . . . . . J i 

2. Cases in which Punishment is groundless. 

r. Where there has never been any mischief: as in the case of consent 171 
2. Where the mischief was outweighed: as in precaution against 

calamity, and the exercise of poivers . . . .172 

J. or will, for a certainty, be cured by compensation . .172 

Hence the favours shown to the offences of responsible 

offenders : such as simple mercantile frauds . .172 

3. Gases in which Punishment must be inefficacious. 

. Where the penal provision comes too late: as in i. An ex-post-facto 

law. 2. An ultra-legal sentence . . , i* 2 

. Or is not made Jcnoivn : as in a law not sufficiently promulgated . 173 

. Where the will cannot be deterred from any act, as in, [a] Infancy 1 73 

[b] Insanity. . . . . . . .173 

[c] Intoxication . . . . . t I ^j 

In infancy and intoxication the case can hardly be proved 

to come under the rule . . . . l *i 

The reason for not punishing in these three cases is com 
monly put upon a wrong footing . . 1 74 
Or not from the individual act in question, as in, . . 174 

[a] TTnintentionalily ... j*^ 

[b] Unconsciousness . . . . m I H. 

[c] Missupposal ..... j^ 
Or is acted on by an opposite superior force : as by, . .174 

[a] Physical danger . ... JIT- 

[b ] Threatened mischief . . . t t j*. 

Why the influence of the moral and religious sanctions is 

not mentioned in the same view . i^c 
or the bodily organs cannot follow its determination : as under 

physical compulsion or restraint . . . . 175 

xxvi Contents. 

4. Cases where Punishment is unprofitable. 


1. Where, in the sort of case in question, the punishment would pro 

duce more evil than the offence would . . . . 175 

Evil producible by a punishment its four branches viz. [a] Re 

straint . 175 

[b] Apprehension . . . . . . .176 

[c] Sufferance , . . . . .176 

[d] Derivative evils . . . . . . . 1 76 

The evil of the offence, being different according to the nature of the 

offence, cannot be represented here . . . .176 

2. Or in the individual case in question : by reason of .176 

[a] The multitude of delinquent* . . . . .176 

[b] The value of a delinquent s service . . . 177 

[c] The displeasure of the people . T 77 

[d] The displeasure of foreign powers . . . 177 

5. Cases where Punishment is needless. 

i. Where the mischief is to be prevented at a cheaper rate: as by 

instruction . . . . 177 



Recapitulation . . . .178 

Four objects of punishment . .178 

1st Object to prevent all offences . .178 

2nd Object to prevent the worst . . . . .178 

3rd Object to keep down the mischief . .178 

4th Object to act at the least expense . . .178 

Rules of proportion between punishments and offences . .178 

The same rules applicable to motives in general . . 1 79 

Rule i. Outtoeigh the profit of the offence . . 179 

Profit may be of any other kind, as well as pecuniary . 179 

Impropriety of the notion that the punishment ought not to 

increase with the temptation . . T 79 
The propriety of taking the strength of the temptation for a ground 

of abatement, no objection to this rule . . .180 

Rule 2. _ Venture more against a great offence than a small one . 181 

Example. Incendiarism and coining . 181 

Rules. Cause the least of two offences to be preferred . . 181 

Rule 4. Punish for each particle of the mischief . .181 

Example. In blows given, and money stolen . .181 

Contents. xxvii 


lule 5. Punish in no degree without special reason . . .182 

iule 6. Attend to circumstances influencing sensibility . .182 

Comparative view of the above rules ..... 182 
nto the account of the value of a punishment, must be taken its 

deficiency in point of certainty and proximily . . .182 

Llso, into the account of the mischief and profit of the offence, the 

mischief and profit of other offences of the same habit . . 183 

lule 7. Want of certainty must be made up in magnitude . .184 

lule 8. So also want of proximity . . . , .184 

lule 9. For acts indicative of a habit, punish as for the habit . 184 

remaining rules are of less importance . . . 184 

lule 10. For the sake of quality, increase in quantity . .184 

lule ii. Particularly for a moral lesson . . . .184 

A. punishment applied by way of moral lesson, what . 184 

Example. In simple corporal injuries . . . 185 

Example. In military laws . . . . .185 

lule 12. Attend to circumstances which may render punishment 

unprofitable . . . . . . .185 

lule 1 3. For simplicity s sake, small disproportions may be neglected 185 
Proportionality carried very far in the present work why 1 85 
Auxiliary force of the physical, moral, and religious sanctions, not 

here allowed for why . . . . . .186 

lecapitulation . . . . . . . .186 

nicety here observed vindicated from the charge of inutility . 187 



^roperties are to be governed by proportion . . . .189 

roperty i. Variability . . . . . .189 

roperty 2. Equability . . . . . .190 

unishments which are apt to be deficient in this respect . . 19 r 

roperty 3. Com mens urability to other punishments . . .191 

low two lots of punishment may be rendered perfectly commen 
surable . . . . . . . .191 

roperty 4. Characteristicalness . . . . .192 

lie mode of punishment the most eminently characteristic, is that of 

retaliation . . . . . . .192 

*roperty 5. Exemplarity . . . . . .193 

.Tie most effectual way of rendering a punishment exemplary is by 

means of analogy . . . . . . .194 

roperty 6. Frugality ....... 194 

frugality belongs in perfection to pecuniary punishment . . 194 

xxviii Contents. 

Exemplarity and frugality in what they differ and agree 

Other properties of inferior importance 

Property 7. Subserviency to reformation .... 

applied to offences originating in ill-will .... 

to offences originating in indolence joined to pecuniary interest . 
Property 8. Efficacy with respect to disablement 

is most conspicuous in capital punishment .... 
Other punishments in which it is to be found .... 
Property 9. Subserviency to compensation .... 
Property 10. Popularity . .... 

Characteristicalness renders a punishment, I. memorable: 
3. exemplary : 3. popular .... 

Mischiefs resulting from the unpopularity of a punishment discontent 

among the people, and weakness in the law 

This property supposes a prejudice which the legislature ought to cure 
Property n. Bemissibility ...... 

To obtain all these properties, punishments must be mixed . 

The foregoing properties recapitulated .... 

Connexion of this with the ensuing chapter .... 



i. Classes of Offences. 

Method pursued in the following division 
Distinction between what are offences and what ought to le . 
No act ought to be an offence but what is detrimental to the com 
munity ...... 

To be so, it must be detrimental to some one or more of its members . 
These may be assignable or not ..... 

Persons assignable, how ..... 

If assignable, the offender himself, or others .... 

Class i. Private offences ...... 

Class 2. Semi-public offences ...... 

Limits between private, semi-public, and public offences, 

are, strictly speaking, undistinguishable . . 206 

Class 3. Self -regarding offences ..... 206 

Class 4. Public offences . . . . . .207 

Class 5. Multiform offences, viz. i. Offences by falsehood. 2. Offences 

against trust . . . . . . .207 

The imperfections of language an obstacle to arrangement . 207 

Irregularity of this class ..... 208 
which could not be avoided on any other plan . . . 208 

Contents. xxix 

2. Divisions and sub-divisions. 


divisions of Class i. i Offences against person. 2 Property. 
3 Reputation. 4 Condition. 5 Person and property. 6 
Person and reputation ..... 2O g 

In what manner pleasure and pain depend upon the relation 

a man bears to exterior objects . . . .209 

)ivisions of Class 2. i. Offences through calamity . . .211 

>ub-di visions of offences through calamity, dismissed . . .212 

. Offences of mere delinquency, how they correspond with the divi 
sions of private offences .... 212 
)ivisions of Class 3 coincide with those of Class i . 212 
)ivisions of Class 4 . . . t 2l ~ 
Exhaustive method departed from . . . .213 
Connexion of the nine first divisions one with another . .214 
Connexion of offences against religion with the foregoing ones . 219 
Connexion of offences against the national interest in general with the 

re8t 221 

tub-divisions of Class 5 enumerated . . . . .221 

)i visions of offences by falsehood . . . 22I 

ffences by falsehood, in what they agree with one another . .221 

- in what they differ . ... . 222 

\ub-divisions of offences by falsehood are determined by the divisions 

of the preceding classes . . . . . 222 

ffences of this class, in some instances, change their names; in 

others, not . . . . t < .223 

trust, what . ... 22 3 

Power and right, why no complete definition is here given 

of them . . . . . m .224 

ffences against trust, condition, and property, why ranked under 

separate divisions . .... 226 

ffences against trust their connexion with each other . . 234 

Prodigality in trustees dismissed to Class 3 ... 24 i 

he sub-divisions of offences against trust are also determined by the 

divisions of the preceding clauses . . 241 

onnexion between offences by falsehood and offences against trust . 242 

3. Genera of Class i. 

.nalysis into genera pursued no further than Class i . .242 

ffences against an individual may be simple in their effects or com- 

pl6X 243 

ttences against person their genera . . , .243 

ffences against reputation .... 246 

xxx Contents. 


Offences against property 

Payment, what ... 

Offences against person and reputation 
Offences against person and property . 
Offences against condition Conditions domestic or civil 
Domestic conditions grounded on natural relationships 
Relations two result from every two objects 
Domestic relations which are purely of legal institution 
Offences touching the condition of a master . 
Various modes of servitude .... 
Offences touching the condition of a servant . 
Guardianship, what Necessity of the institution 
Duration to be given to it ... 

Powers that may, and duties that ought to be, annexed to it . 
Offences touching the condition of a guardian 
Offences touching the condition of a ward 
Offences touching the condition of a parent 
Offences touching the filial condition . 

Condition of a husband. Powers, duties, and rights, that may be an 
nexed to it 

Offences touching the condition of a husband . 
Offences touching the condition of a wife 
Civil conditions ....... 

4. Advantages of the present method. 

General idea of the method here pursued 
Its advantages . 

i. It is convenient for the apprehension and the memory 

2. It gives room for general propositions . 

3. It points out the reason of the law 

4. It is alike applicable to the laws of all nations , 

5. Characters of the five classes. 

Characters of the classes, how deducible from the above method 

Characters of class I . 

Characters of class 2 . 

Characters of class 3 . 

Characters of class 4 . 

Characters of class 5 . 

Contents. xxxi 



i. Limits between private Ethics and the art of Legislation. 


Jse of this chapter ....... 309 

Ethics in general, what . . . 310 

rivate ethics . . . . . . . .31 

?he art of government : that is, of legislation and administration . 310 
Interests of the inferior animals improperly neglected in 

legislation . . . . . . 310 

k.rt of education ... . . 3 11 

Cthics exhibit the rules of, i. Prudence. 2. Probity. 3. Beneficence 312 
robity and beneficence how they connect with prudence . .312 

Cvery act which is a proper object of ethics is not of legislation . 312 
?he limits between the provinces of private ethics and legislation, 

marked out by the cases unmeet for punishment . . 314 

Neither ought to apply where punishment is groundless . .314 

How far private ethics can apply in the cases where punishment 
would be inefficacious . . . . . . 315 

low far, where it would be unprofitable . . . . 315 

Vhich it may be, i. Although confined to the guilty . .316 

2. By enveloping the innocent . . .318 

legislation how far necessary for the enforcement of the dictates of 

prudence . . . . . . . 3 T 9 

Apt to go too far in this respect . . . . . 320 

Particularly in matters of religion . . . . .320 

How far necessary for the enforcement of the dictates of probity . 321 

of the dictates of beneficence . . . . .322 
Difference between private ethics and the art of legislation recapitu 
lated ...... -323 

2. Jurisprudence, its branches. 

Jurisprudence, expository censorial ..... 323 
Expository jurisprudence, authoritative unauthoritative . . 324 

sources of the distinctions yet remaining . . . . 324 

Jurisprudence, local universal . . . . -3^5 

internal and international ..... 326 
tnternal jurisprudence, national and provincial, local or particular . 327 
Jurisprudence, ancient living . . . . .328 
Jurisprudence, statutory customary ..... 329 
Jurisprudence, civil penal criminal . . . 3 2 9 
Question, concerning the distinction between the civil branch and the 

penal, stated . . . . . . . 329 

xxxii Contents. 


I. Occasion and purpose of this concluding note . . 330 

II. By a law here is not meant a statute . . . 330 

III. Every law is either a command, or a revocation of one . 330 

IV. A declaratory law is not, properly speaking, a law . 330 
V. Every coercive law creates an offence . . . 330 

VI. A law creating an offence, and one appointing punishment, 
are distinct laws ..... 

VII. A discoercive law can have no punitory one appertaining to 

it but through the intervention of a coercive one 
VIII. But a punitory law involves the simply imperative one it 
belongs to ...... 

IX. The simply imperative one might therefore be spared, but 
for its expository matter .... 

X. Nature of such expository matter .... 

XI. The vastness of its comparative bulk is not peculiar to 
legislative commands ..... 

XII. The same mass of expository matter may serve in common 
for many laws ...... 

XIII. The imperative character essential to law, is apt to be con 

cealed in and by expository matter 

XIV. The concealment is favoured by the multitude of indirect 

forms in which imperative matter is capable of being 
couched ....... 

XV. Number and nature of the laws in a code, how determined. 

XVI. General idea of the limits between a civil and a penal code 

XVII. Contents of a civil code ..... 

XVIII. Contents of a penal code ..... 

XIX. In the Code Frederic the imperative character is almost 
lost in the expository matter .... 

XX. So in the Roman law ..... 

XXI. In the barbarian codes it stands conspicuous 
XXII. Constitutional code, its connexion with the two others 

XXIII. Thus the matter of one law may be^divided among all 

three codes ...... 

XXIV. Expository matter, a great quantity of it exists everywhere, 

in no other form than that of common or judiciary law 
XXV. Hence the deplorable state of the science of legislation, 

considered in respect of its form 

XXVI. Occasions affording an exemplification of the difficulty as 
well as importance of this branch of science ; attempts 
to limit the powers of supreme representative legislatures 
XXVII. Example: A merica n declarations of rights. 






I. NATURE has placed mankind under the governance of two Mankind 
Dvereign masters, jwmjind pleasure. It is for them alone to Kafn and 
ojnt out wj^al^ we^ ought to do, as well as to determine what we p e 
lall do. On the one hand the standard of right and wrong, on 
ae other the chain of causes and effects, are fastened to their 
arone. They govern usjnjill we do, in all we say^in alJLwe 
aink : every effort we can make to throw off our subjection, will 
jrve but to demonstrate and confirm it. In words a man may 
re tend to abjure their empire : but in reality he will remain 
ibject to it all the while. The principle of utility l recognises 

Note by the Author, July 1822. 

To this denomination has of late been added, or substituted, the greatest 
ippiness or greatest felicity principle : this for shortness, instead of saying 
:/ length that principle which states the greatest happiness of all those 
hose interest is in question, as being the right and proper, and only right 
id proper and universally desirable, end of human action : of human action 
. every situation, and in particular in that of a functionary or set of f unc- 
onaries exercising the powers of Government. The word utility does not 
clearly point to the ideas of pleasure and pain as the words happiness and 
licity do : nor does it lead us to the consideration of the number, of the 
terests affected; to the number, as being the circumstance, which contri- 
ites, in the largest proportion, to the formation of the standard here in 
lestion ; the standard of right and wrong, by which alone the propriety of 
: iman conduct, in every situation, can with propriety be tried. This want 

a sufficiently manifest connexion between the ideas of happiness and 
easure on the one hand, and the idea of utility on the other, I have every 
: >wand thenfouna operating, and with but too much efficiency, as a bar to 
I e acceptance, that might otherwise have been given, to this principle. 


2 Of the Principle of Utility. [CHAP. 

this subjection, and assumes it for the foundation of that system, 
the object of which is to rear the fabric of felicity by the hands 
of reason and of law. Systems which, attempt to question it, 
deal in sounds instead of sense, in caprice instead of reason, in 
darkness instead of light. 

But enough of metaphor and declamation : it is not by such 
means that moral science is to be improved. 

II. The principle of utility is the foundation of the presen 
work : it will be proper therefore at the outset to give an ex 
plicit and determinate account of what is meant by it. _By th< 
Principle of principle * of utility is meant that principle which approves oj 
whatf disapproSiZof every action whatsoever, according to the ten 
dency which it appears to~Eave to augment or diminish th< 
happiness of the party whose interest is in question : or, what ii 
the same thing in other words, to promote or to oppose tha 
happiness. I say of every action whatsoever ; and therefore no 
only of every action of a private individual, but of every measun 
of government. 

utility HI. By utility is meant that proper^jnaay.Qbiflflt, whereb] 

it tends toj>roduce benent, advantage7pleasure, good, or happi 
ness7(all this in the presenTcase comes to the same thing) o 
(what comes again to the same thing) to prevent the happeninj 
of mischief, pain, evil, or unhappiness to the party whose interes 
is considered : if that party be the community in general, thei 
the happiness of the community : if a particular individual, the] 
the happiness of that individual. 

A principle, i The word principle is derived from the Latin principium : which seem 
what> to be compounded of the two words primus, first, or chief, and cipiun 

a termination which seems to be derived from capio, to take, as in manc\ 
pium, municipium; to which are analogous, auceps, forceps, and others. 1 
is a term of very vague and very extensive signification: it is applied t 
any thing which is conceived to serve as a foundation or beginning to an 
series of operations : in some cases, of physical operations ; but of menti 
operations in the present case. 

The principle here in question may be taken for an act of the mind ; 
sentiment ; a sentiment of approbation ; a sentiment which, when applie 
to an action, approves of its utility, as that quality of it by which th 
measure of approbation or disapprobation bestowed upon it ought t 

i.] Of the Principle of Utility. 3 

IV. The interest of the community is one of the most general interest of 

. -, , , , the commu- 

expressions that can occur in the phraseology of morals : no nit y what, 
wonder that the meaning of it is often lost. When it has a 
meaning, it is this. The cojmnujiit.y_is^a fictitious body, com 
posed of the individual persons who are considered as consti 
tuting as it were its members. The interest of the community 
then is, what ? the sum of the interests of the several members 
who compose it. 

V. It is in vain to talk of the interest of the community, 
without understanding what is the interest of the individual 1 . 
A thing is said to promote the interest, or to be for the interest, 
of an individual, when it tends to add to the sum total of his 
pleasures : or, what comes to the same thing, to diminish the 
sum total of his pains. 

VI. An action then may be said to be conformable to the An action 
principle of utility, or, for shortness sake, to utility, (meaning to^hTprin 1 - 
with respect to the community at large) when the tendency it S^fwhat*. 1 " 
has to augment the happiness of the community is greater than 

any it has to diminish it. 

VII. A measure of government (which is but a particular A measure oi 
kind of action, performed by a particular person or persons) may conformable 
be said to be conformable to or dictated by the principle of ciple1>?nti- 
utility, when in like manner the tendency which it has to aug- hty V 
ment the happiness of the community is greater than any which 

it has to diminish it. 

VIII. When an action, or in particular a measure of govern- Laws or dic- 
ment, is supposed by a man to be conformable to the principle lity, what. " 
of utility, it may be convenient, for the purposes of discourse, to 
imagine a kind of law or dictate, called a law or dictate of 

utility : and to speak of the action in question, as being con 
formable to such law or dictate. 

IX. A man may be said to be a partizan of the principle of Apartizanof 
utility, when the approbation or disapprobation he annexes to of utility, 
any action, or to any measure, is determined by and proportioned w 

1 Interest is one of those words, which not having any superior genus, 
cannot in the ordinary way be defined. 

B 2 

4 Of the Principle of Utility. [CHAP 

to the tendency which he conceives it to have to augment or to 

diminish the happiness of the community : or in other words, to 

its conformity or unconformity to the laws or dictates of utility, 

Ought, X. Of an action that is conformable to the principle of utility 

righ^and one may always say either that it is one that ought to be done, 

howtobe or at least that it is not one that ought not to be done. One 

understood. ma ^ gay ^^ ^^ ^ - g ^^t ^ g^^ fa <Jone . a t l ea st that it 

is not wrong it should be done : that it is a right action ; at 

least that it is not a wrong action. When thus interpreted, the 

words ought, and riqht and wrong, and others of that stamp, 

have a meaning : when otherwise, they have none. 

TO prove the XI. Has the rectitude of this principle been ever formally 

this princi- contested ? It should seem that it had, by those who have not 

been con 

known what they have been meaning. Is insusceptible of any 
siWe! mp /" direct proof ? it should seem not : fofthat which is used to 
prove every thing else, cannot itself be proved: a chain of proofs 
- must have their commencement somewhere. To give such proof 

is as impossible as it is needless. 

it has sei- XII. Not that there is or ever has been that human creature I 
iou r, as yet breathing, however stupid or perverse, who has not on many, I 
perhaps on most occasions of his life, deferred to it. By the 
natural constitution of the human frame, on most occasions of 
their lives men in general embrace this principle, without think 
ing of it : if not for the ordering of their own actions, yet for 
the trying of their own actions, as well as of those of other men. 
There have been, at the same time, not many, perhaps, even of 
the most intelligent, who have been disposed to embrace it purely 
and without reserve\There are even few who have not taken 
some occasion or offiier to quarrel with it, either on account of 
their not understanding always how to apply it, or on account of 
some prejudice or other which they were afraid to examine into, 
or could not bear to part with. For such is the stuff that man 
is made of : in principle and in practice, in a right track and in I 
a wrong one, the rarest of all human qualities is consistency. 
it can never XIII . When a man attempts to combat the principle of utility, 
entiy n com"- it is with reasons drawn, without his being aware of it, from 



i.] Of the Principle of Utility. 5 

that very principle itself 1 . His arguments, if they prove any 
thing, prove not that the principle is wrong, but that, according 
to the applications he supposes to be made of it, it is misapplied. 
Is it possible for a man to move the earth ? Yes ; but he must 
first find out another earth to stand upon. 

XIV. To disprove the propriety of it by arguments is im- Course to be 

1 The principle of utility, (I have heard it said) is a dangerous principle: 
it is dangerous on certain occasions to consult it. This is as much as to 
say, what ? that it is not consonant to utility, to consult utility : in short, 
that it is not consulting it, to consult it. 

Addition by the Author, July 1822. 

Not long after the publication of the Fragment on Government, anno 
1 776,inwhich,m the character of an all-comprehensive and all-commanding 
principle, the principle of utility was brought to view, one person by whom 
observation to the above effect was made v/as Alexander Wedderburn, at 
that time Attorney or Solicitor General, afterwards successively Chief Jus 
tice of the Common Pleas, and Chancellor of England, under the successive 
titles of Lord Loughborough and Earl of Rosslyn. It was made not 
indeed in my hearing, but in the hearing of a person by whom it was 
almost immediately communicated to me. So far from being self-contra 
dictory, it was a shrewd and perfectly true one. By that distinguished 
functionary, the state of the Government was thoroughly understood : by 
the obscure individual, at that time not so much as supposed to be so : his 
disquisitions had not been as yet applied, with any thing like a comprehen 
sive view, to the field of Constitutional Law, nor therefore to those features 
of the English Government, by which the greatest happiness of the ruling 
one with or without that of a favoured few, are now so plainly seen to be 
the only ends to which the course of it has at any time been directed. The 
principle of utility was an appellative, at that time employed employed by 
me, as it had been by others,to designate that which, in a more perspicuous 
and instructive manner, may, as above, be designated by the name of the 
greatest happiness principle. This principle (said Wedderburn) is a dan 
gerous one. Saying so, he said that which, to a certain extent, is strictly 
true : a principle, which lays down, as the only right and justifiable end of 
Government, the greatest happiness of the greatest number how can it be 
denied to be a dangerous one ? daugejcojig it unquestionably is, to every 
government which has for its actual end or object, the greatest happiness 
of a certain owe, with or without the addition of some comparatively small 
number of others, whom it is matter of pleasure or accommodation to him \ 
to admit, each of them, to a share in the concern, on the footing of so 1 
many junior partners. Dangerous it therefore really was, to the interest \ 
the sinister interest of all those functionaries, himself included, whose J 
interest it was, to maximize delay, vexation, and expense, in judicial and 
other modes of procedure, for the sake of the profit, extractible out of the 
expense. In a Government which had for its end in view the greatest 
happiness of the greatest number, Alexander Wedderburn might have been 
Attorney General and then Chancellor: but he would not have been 
Attorney General with 15,000 a year, nor Chancellor, with a peerage with 
a veto upon all justice, with 25,000 a year, and with 500 sinecures at his 
disposal, under the name of Ecclesiastical Benefices, besides et cceteras. 

6 Of the Principle of Utility. [CHAP. 

surmounting possible ; but, from the causes that have been mentioned, or 
thlfmay 3 from some confused or partial view of it, a man may happen to 
enterSd be disposed not to relish it. Where this is the case, if he thinks 
against it. tlie sett ^ n g o f fog opinions on such a subject worth the trouble, 

let him take the following steps, and at length, perhaps, he may 

come to reconcile himself to it. 

1. Let him settle with himself, whether he would wish to 
discard this principle altogether ; if so, let him consider what it 
is that all his reasonings (in matters of politics especially) can 
amount to ? 

2. If he would, let him settle with himself, whether he would 
judge and act without any principle, or whether there is any 
other he would judge and act by ? 

3. If there be, let him examine and satisfy himself whether 
the principle he thinks he has found is really any separate in 
telligible principle ; or whether it be not a mere principle in 
words, a kind of phrase, which at bottom expresses neither more 
nor less than the mere averment of his own unfounded senti 
ments ; that is, what in another person he might be apt to call 
caprice ? 

4. If he is inclined to think that his own approbation or dis- , 
approbation, annexed to the idea of an act, without any regard 
to its consequences, is a sufficient foundation for him to judge 
and act upon, let him ask himself whether his sentiment is to be 
a standard of right and wrong, with respect to every other man, 
or whether every man s sentiment has the same privilege of 
being a standard to itself ? 

5. In the first case, let him ask himself whether his principle 
is not despotical, and hostile to all the rest of human race ? 

6. In the second case, whether it is not anarchial, and whether 
at this rate there are not as many different standards of right 
and wrong as there are men ? and whether even to the same 
man, the same thing, which is right to-day, may not (without the 
least change in its nature) be wrong to-morrow ? and whether 
the same thing is not right and wrong in the same place at the 
same time ? and in either case, whether all argument is not at 


I.] Of the Principle of Utility. 7 

an end ? and whether, when two men have said, I like this, 5 
and I don t like it, they can (upon such a principle) have any 
i thing more to say ? 

7. If he should have said to himself, No : for that the senti 
ment which he proposes as a standard must be grounded on 
reflection, let him say on what particulars the reflection is to 
turn ? if on particulars having relation to the utility of the act, 
then let him say whether this is not deserting his own principle, 
and borrowing assistance from that very one in opposition to 
which he sets it up : or if not on those particulars, on what 
other particulars ? 

8. If he should be for compounding the matter, and adopting 
his own principle in part, and the principle of utility in part, let 
him say how far he will adopt it ? 

9. When he has settled with himself where he will stop, then 
let him ask himself how he justifies to himself the adopting it so 
far ? and why he will not adopt it any farther ? 

10. Admitting any other principle than the principle of utility 
to be a right principle, a principle that it is right for a man to 
pursue ; admitting (what is not true) that the word right can 
have a meaning without reference to utility, let him say whether 
there is any such thing as a motive that a man can have to 
pursue the dictates of it : if there is, let him say what that 
motive is, and how it is to be distinguished from those which 
enforce the dictates of utility : if not, then lastly let him say 
what it is this other principle can be good for ? 



All other 
than that of 
utility must 
be wrong. 

Ways in 
which a 
may be 

origin of the 

Principles of 
the Monks. 

I. IF the principle of utility be a right principle to be governed 
by, and that in all cases, it follows from what has been just 
observed, that whatever principle differs from it in any case 
must necessarily be a wrong one. To prove any other principle, 
therefore, to be a wrong one, there needs no more than just to 
show it to be what it is, a principle of which the dictates are in 
some point or other different from those of the principle of 
utility : to state it is to confute it. 

II. A jmnciple may be different from that of utility in two 
ways: I, By being constantly opposed to it : this is the case 
with a principle which may be termed the principle of asceti 

2. By being sometimes opposed to it, and sometimes 


1 Ascetic is a term that has been sometimes applied to Monks. It comes 
from a Greek word which signifies exercise. The practices by which Monks \ 
sought to distinguish themselves from other men were called their Exer 
cises. These exercises consisted in so many contrivances they had for 
tormenting themselves. By this they thought to ingratiate themselves 
with the Deity. For the Deity, said they, is a Being of infinite benevo 
lence : now a Being of the most ordinary benevolence is pleased to see 
others make themselves as happy as they can: therefore to make ourselves 
as unhappy as we can is the way to please the Deity. If any body asked 
them, what motive they could find for doing all this? Oh ! said they, you 
are not to imagine that we are punishing ourselves for nothing : we know 
very well what we are about. You are to know, that for every grain of 
pain it costs us now, we are to have a hundred grains of pleasure by and by. 
The case is, that God loves to see us torment ourselves at present : indeed 
he has as good as told us so. But this is done only to try us, in order just 
to see how we should behave : which it is plain he could not know, without 
making the experiment. Now then, from the satisfaction it gives him to 
gee us make ourselves as unhappy as we can make ourselves in this present 
life, we have a sure proof of the satisfaction it will give him to see us as 
happy as he can make us in a life to come. 


Of Principles adverse to that of Utility. 9 

not, as it may happen : this is the case with another, which may 
)e termed the principle of sympathy and antipathy. 

III. By the principle ot asceticism 1 mean that principle, Principle of 
;vhich, like the principle of utility, approves or disapproves of what! 018 
my action, according to the tendency which it appears to have 

:o augment or diminish the happiness of the party whose in 
terest is in question but in an inverse manner : approving of 
ictions in as far as they tend to diminish his happiness ; dis- 
tpproving of them in as far as they tend to augment it. 

IV. It is evident that any one who reprobates any the least Apartizanof 
>article of pleasure, as such, from whatever source derived, is of ascetf- lple 
wo tanto a partizan of the principle of asceticism. It is only clsm wh 
ipon that principle, and not from the principle of utility, that 

he most abominable pleasure which the vilest of malefactors 
ver reaped from his crime would be to be reprobated, if it stood 
lone. The case is, that it never does stand alone ; but is neces- 
arily followed by such a quantity of pain (or, what comes to the 
,ame thing, such a chance for a certain quantity of pain) that 
he pleasure in comparison of it, is as nothing : and this is the 
rue and sole, but perfectly sufficient, reason for making it a 
:{round for punishment. 

| V. There are two classes of men of very different complexions, This prin- 
>y whom the principle of asceticism appears to have been em- ?A P some S a a 
raced ; the one a set of moralists, the other a set of religion- S/inothers 
sts. Different accordingly have been the motives which appear origin? 01 * 
o have recommended it to the notice of these different parties, 
lope, that is the prospect of pleasure, seems to have animated 
he former : hope, the aliment of philosophic pride : the hope of 
.onour and reputation at the hands of men. Fear, that is the 
rospect of pain, the latter : fear, the offspring of superstitious 
incy : the fear of future punishment at the hands of a splen- 
tic and revengeful Deity. I say in this case fear : for of the 
ivisible future, fear is more powerful than hope. These cir- 
umstances characterize the two different parties among the 
artizans of the principle of asceticism ; the parties and their 
lotives different, the principle the same. 

io Of Principles adverse to that of Utility. [CHAP. 

it has been VI. The religious party, however, appear to have carried it 
ther by the farther than the philosophical : they have actedmore consistently 
parfythan and less wisely. The philosophical party have scarcely gone 
11 " farther than to reprobate pleasure : the religious party have fre 

quently gone so far as to make it a matter of merit and of duty 
to court pain. The philosophical party have hardly gone farther 
than the making pain a matter of indifference. It is no evil, 
they have said : they have not said, it is a good. They have not 
so much as reprobated all pleasure in the lump. They have 
discarded only what they have called the gross ; that is, such 
as are organical, or of which the origin is easily traced up to 
such as are organical : they have even cherished and magnified 
the refined. Yet this, however, not under the name of pleasure : 
to cleanse itself from the sordes of its impure original, it was 
necessary it should change its name : the honourable, the glorious, 
the reputable, the becoming, the honestum, the decorum, it was 
to be called : in short, any thing but pleasure. 

The philo- VII. From these two sources have flowed the doctrines from 
branch of it which the sentiments of the bulk of mankind have all along re- 
most fnflu- ceived a tincture of this principle ; some from the philosophical, 

some from the religious, some from both. Men of education 
the religious more frequently from the philosophical, as more suited to ther 
v3gar. the elevation of their sentiments : the vulgar more frequently from 
the superstitious, as more suited to the narrowness of their in 
tellect, undilated by knowledge : and to the abjectness of their 
condition, continually open to the attacks of fear. The tinctures, 
however, derived from the two sources, would naturally inter 
mingle, insomuch that a man would not always know by which 
of them he was most influenced : and they would often serve to 
corroborate and enliven one another. It was this conformity 
that made a kind of alliance between parties of a complexion 
otherwise so dissimilar: and disposed them to unite upon various 
occasions against the common enemy, the partizan of the prin 
ciple of utility, whom they joined in branding with the odious 
name of Epicurean. 

.] Of Principles adverse to that of Utility. u 

VIII. The principle of asceticism, however, with whatever The princi- 
armth it may have been embraced by its partizans as a rule of dsm has 6 * 1 
:ivate conduct, seems not to have been carried to any consider- dny e ap- 
)le length, when applied to the business of government. In a eitherparty 
w instances it has been carried a little way by the philosophical 
irty: witness the Spartan regimen. Though then, perhaps, it 
ay be considered as having been a measure of security : and an 
plication, though a precipitate and perverse application, of the 
inciple of utility. Scarcely in any instances, to any consider- 
)le length, by the religious : for the various monastic orders, 
id the societies of the Quakers, Dumplers, Moravians, and other 
ligionists, have been free societies, whose regimen no man has 
jen astricted to without the intervention of his own consent. 
Tiatever merit a man may have thought there would be in 
aking himself miserable, no such notion seems ever to have 
curred to any of them, that it may be a merit, much less a 
ity, to make others miserable : although it should seem, that if 
certain quantity of misery were a thing so desirable, it would 
)t matter much whether it were brought by each man upon 
mself, or by one man upon another. It is true, that from the 
me source from whence, among the religionists, the attachment 
> the principle of asceticism took its rise, flowed other doctrines 
id practices, from which misery in abundance was produced in 
le man by the instrumentality of another : witness the holy 
ars, and the persecutions for religion. But the passion for 
reducing misery in these cases proceeded upon some special 
round : the exercise of it was confined to persons of particular 
escriptions : they were tormented, not as men, but as heretics 
nd infidels. To have inflicted the same miseries on their fellow- 
elievers and fellow-sectaries, would have been as blameable in 
ae eyes even of these religionists, as in those of a partizan of 
ae principle of utility. For a man to give himself a certain 
umber of stripes was indeed meritorious : but to give the same 
umber of stripes to another man, not consenting, would have 
een a sin. We read of saints, who for the good of their souls, 
ad the mortification of their bodies, have voluntarily yielded 

T2 Of Principles adverse to that of Utility. [CHAP. 

themselves a prey to vermin : but though many persons of this 
class have wielded the reins of empire, we read of none who 
have set themselves to work, and made laws on purpose, with a 
view of stocking the body politic with the breed of highwaymen, 
housebreakers, or incendiaries. If at any time they have suffered 
the nation to be preyed upon by swarms of idle pensioners, or 
useless placemen, it has rather been from negligence and im- 
. becility, than from any settled plan for oppressing and plundering \ 
of the people. If at any time they have sapped the sources of 
national wealth, by cramping commeice, and driving the inhabi 
tants into emigration, it has been with other views, and in pur 
suit of other ends. If they have declaimed against the pursuit 
of pleasure, and the use of wealth, they have commonly stopped 
at declamation : they have not, like Lycurgus, made express 
ordinances for the purpose of banishing the precious metals. If; 
they have established idleness by a law, it has been not because i 
idleness, the mother of vice and misery, is itself a virtue, but 
because idleness (say they) is the road to holiness. If under the 
notion of fasting, they have joined in the plan of confining their 
subjects to a diet, thought by some to be of the most nourishing 
and prolific nature, it has been not for the sake of making them 
tributaries to the nations by whom that diet was to be supplied, 
but for the sake of manifesting their own power, and exercising 
the obedience of the people. If they have established, or suffered \ 
to be established, punishments for the breach of celibacy, the} 
have done no more than comply with the petitions of those i 
deluded rigorists, who, dupes to the ambitious and deep-laid j 
policy of their rulers, first laid themselves under that idle obliga- 1 
tion by a vow. 

Theprin- IX, The principle of asceticism seems originally to have been 
tlcism, Sits the reverie of certain hasty speculators, who having perceived!; 

origin, was . _ , ., , ,. ... L 

but that of or fancied, that certain pleasures, when reaped in certain cir 
cumstances, have, at the long run, been attended with pains mow 
than equivalent to them, took occasion to quarrel with ever} 
thing that offered itself under the name of pleasure. Having 
then got thus far, and having forgot the point which they set ou 

.] Of Principles adverse to that of Utility. 13 

0m, they pushed on, and went so much further as to think it 
eritorious to fall in love with pain. Even this, we see, is at 
>ttom but the principle of utility misapplied. 

X. The principle of utility is capable of being consistently it can nevei 
|irsued ; and it is but tautology to say, that the more con- entbrpir- 
stently it is pursued, the better it must ever be for human- 

nd. The principle of asceticism never was, nor ever can be, 
insistently pursued by any living creature. Let but one tenth 
irt of the inhabitants of this earth pursue it consistently, and 
a day s time they will have turned it into a hell. 

XI. Among principles adverse 1 to that of utility, that which The prin 

ciple of sym- 

The following Note was first printed in January 1789. 

It ought rather to have been styled, more extensively, the principle of 

vrice. Where it applies to the choice of actions to be marked out for 

unction or prohibition, for reward or punishment, (to stand, in a word, 

subjects for obligations to be imposed,) it may indeed with propriety be 

med, as in the text, the principle of sympathy and antipathy. But this 

pellative does not so well apply to it, when occupied in the choice of the 

mts which are to serve as sources of title with respect to rights : where 

3 actions prohibited and allowed the obligations and rights, being already 

ed, the only question is, under what circumstances a man is to be in- 

stedwith the one orsubjected to theother? from what incidents occasion 

to be taken to invest a man, or to refuse to invest him, with the one, or 

subject him to the other? In this latter case it may more appositely be 

aracterized by the name of the phantastic principle. Sympathy and 

ttipathy are affections of the sensible faculty. But the choice of titles 

j fch respect to rights, especially with respect to proprietary rights, upon 

bunds unconnected with utility, has been in many instances the work, 

j t of the affections but of the imagination. 

j When, in justification of an article of English Common Law, calling 
I cles to succeed in certain cases in preference to fathers, Lord Coke pro- 
i ced a sort of ponderosity he had discovered in rights, disqualifying them 

I m ascending in a straight line, it was not that he loved uncles particu- 
jily, or hated fathers, but because the analogy, such as it was, was what 

I 1 imagination presented him with, instead of a reason, and because, to a 
j Igment unobservant of the standard of utility, or unacquainted with the 
ii} of consulting it, where affection is out of the way, imagination is the 
i ly guide. 

When I know not what ingenious grammarian invented the proposition 
: legatus non potest delegare, to serve as a rule of law, it was not surely 
it he had any antipathy to delegates of the second order, or that it was 
5 y pleasure to him to think of the ruin which, for want of a manager at 
,. ; me, may befal the affairs of a traveller, whom an unforeseen accident 
Pi 8 deprived of the object of his choice : it was, that the incongruity, of 
j dng the same law to objects so contrasted as active and passive are, was 
1 1 to be surmounted, and that -atus chimes, as well as it contrasts, with 

14 Of Principles adverse to that of Utility. [CHAP. 

pathy and at this day seems to have most influence in matters of govern- 
ment? ig what may be called ^ principle of sympathy and an- 

When that inexorable maxim, (of which the dominion is no more to b& 
denned, than the date of its birth, or the name of its father, is to be found,) 
was imported from England for the government of Bengal, and the whole 
fabric of judicature was crushed by the thunders of ex post facto justice, it 
was not surely that the prospect of a blameless magistracy perishing in 
prison afforded any enjoyment to the unoff ended authors of their misery ; 
but that the music of the maxim, absorbing the whole imagination, had 
drowned the cries of humanity along with the dictates of common sense 
Fiat Justitia, ruat ccdum, says another maxim, as full of extravagance as 
it is of harmony : Go heaven to wreck so justice be but done : and what 
is the ruin of kingdoms, in comparison of the wreck of heaven? 

So again, when the Prussian chancellor, inspired with the wisdom of I 
know not what Roman sage, proclaimed in good Latin, for the edification. 
of German ears, Servitus servitutis non datur, [Cod. Fred. torn. 11. par. 2. 
liv 2 tit x. 6. p. 308.] it was not that he had conceived any aversion to 
the life-holder who, during the continuance of his term, should wish to 
gratify a neighbour with a right of way or water, or to the neighbour who 
should wish to accept of the indulgence ; but that, to a jurisprudents! ear, 
-tus -tutis sound little less melodious than -atus -are. Whether the melody 
of the maxim was the real reason of the rule, is not left open to dispute : 
for it is ushered in by the conjunction quia, reason s appointed harbinger; 
quia servitus servitutis non datur. 

Neither would equal melody have been produced, nor indeed could 
similar melody have been called for, in either of these instances, by the 
opposite provision : it is only when they are opposed to general rules, and 
not when by their conformity they are absorbed in them, that more specific 
ones can obtain a separate existence. Delegatus potest ddegare, and 6er- 
vitus servitutis datur, provisions already included under the general adop-, 
tien of contracts, would have been as unnecessary to the apprehension anc 
the memory, as, in comparison of their energetic negatives, they are insipic 

Were the inquiry diligently made, it would be found that the goddess o : 

1 Additional Note by the Author, July 1822. 

Add and that the bad system, of Mahometan and other native law was to be put doir 
at all events, to make way for the inapplicable and still more mischievous system of tiiglu 
Judge-made law, and, by the hand of his accomplice Hastings, was to be put into the pock, j 
of Imnev Importer of this instrument of subversion, 8,000 a-year contrary to law, H 
addition to the 8,000 a-year lavished upon him, with the customary profusion, by the han 
of law. See the Account of this transaction in Mill s British India. 

To this Governor a statue is erecting by a vote of East India Directors and Proprietor! j 
on it should be inscribed-e it but put money into our pockets, no tyranny too flagtU^i 

to ToThis S sufu?o b fthe Arch-malefactor should be added, for a companion, that of the lonjj 
robed accomplice : the one lodging the bribe in the hand of the other. The hundred millioi 
of plundered and oppressed Hindoos and Mahometans pay for the one : a Westmmst . 
Hall subscription might pay for the other. 

What they have done for Ireland with her seven millions of souls, the authorised denial 
and oerverters of justice have done for Hindostan with her hundred millions. In this there! 1 
nothing wonderful. The wonder is-that, under such institutions, men though in ever su- 
small number, should be found, whom the view of the injustices which, by English Jud$\ 
made law thev are compelled to commit, and the miseries they are thus compelled to pi 
Tee deprive of health and rest. Witness the Letter of an English Hindostan Judge, Sept 
x8io which lies before me. I will not make so cruel a requital for his honesty as to put 1 
name in print : indeed the House of Commons Documents already published leave liti 
need of it. 

a.] Of Principles adverse to that of Utility. 15 

apathy. By the principle of sympathy and antipathy, I mean 
that principle which approves or disapproves of certain actions, 

larmony has exercised more influence, however latent, over the dispensa 
tions of Themis, than her most diligent historiographers, or even her most 
Dassionate panegyrists, seem to have been aware of. Every one knows, 
low, by the ministry of Orpheus, it was she who first collected the sons of 
nen beneath the shadow of the sceptre : yet, in the midst of continual 
sxperience, men seem yet to learn, with what successful diligence she has 
aboured to guide it in its course. Every one knows, that measured num- 
>ers were the language of the infancy of law : none seem to have observed, 
vithwhat imperious sway they have governed hermaturer age. In English 
urisprudence in particular, the connexion betwixt law and music, however 
ess perceived than in Spartan legislation, is not perhaps less real nor less 
;e. The music of the Office, though not of the same kind, is not less 
nusical in its kind, than the music of the Theatre ; that which hardens the 
leart, than that which softens it : sostenutos as long, cadences as sono- 
ous ; and those governed by rules, though not yet promulgated, not less 
leterminate. Search indictments, pleadings, proceedings in chancery, con 
veyances : whatever trespasses you may find against truth or common sense, 
7ou will find none against the laws of harmony. The English Liturgy, 
ustly as this quality has been extolled in that sacred office, possesses not 
\ greater measure of it, than is commonly to be found in an English Act of 
Parliament. Dignity, simplicity, brevity, precision, intelligibility, possi- 
)ility of being retained or so much as apprehended, every thing yields to 
larmony. Volumes might be filled, shelves loaded, with the sacrifices 
-hat are made to this insatiate power. Expletives, her ministers in Grecian 
Doetry are riot less busy, though in different shape and bulk, in English 
egislation : in the former, they are monosyllables * : in the latter, they are 
vhole lines 2 . 

To return to the principle of sympathy and antipathy : a term preferred 
it first, on account of its impartiality, to the principle of caprice. The 
shoice of an appellative, in the above respects too narrow, was owing to my 
lot having, at that time, extended my views over the civil branch of law, 
my otherwise than as I had found it inseparably involved in the penal. 
3ut when we come to the former branch, we shall see the phantastic prin- 
;iple making at least as great a figure there, as the principle of sympathy 
ind antipathy in the latter. 

In the days of Lord Coke, the light of utility can scarcely be said to have 
is yet shone upon the face of Common Law. If a faint ray of it, under the 
I lame of the argumentum ab inconvenienti, is to be found in a list of about 
pwenty topics exhibited by that great lawyer as the co-ordinate leaders of 
;hat all- perfect system, the admission, so circumstanced, is as sure a proof 
>f neglect, as, to the statues of Brutus and Cassius, exclusion was a cause 
)f notice. It stands, neither in the front, nor in the rear, nor in any post of 
] lonour ; but huddled in towards the middle, without the smallest mark of 
JDreference. [Coke, Littleton, n. a.] Nor is this Latin inconvenience by 
I my means the same thing with the English one. It stands distinguished 
j rom mischief : and because by the vulgar it is taken for something less 
bad, it is given by the learned as something worse. The law prefers a 

1 Met , TOI, ye, vvv, &c. 

* And be it further enacted by the authority aforesaid, that Provided always, and it 
a hereby further enacted and declared that &c. &c. 

1 6 Of Principles adverse to that of Utility. [CHAP. 

not on account of their tending to augment the happiness, nor 
yet on account of their tending to diminish the happiness of the 
party whose interest is in question, but merely because a man 
finds himself disposed to approve or disapprove of them : holding 
up that approbation or disapprobation as a sufficient reason for 
itself, and disclaiming the necessity of looking out for any ex 
trinsic ground. Thus far in the general department of morals : 
and in the particular department of politics, measuring out the 
quantum (as well as determining the ground) of punishment, by 
the degree of the disapprobation. 

This is XII. It is manifest, that this is rather a principle in name 

mgSnof than in reality : it is not a positive principle of itself, so much! 
Sa P n n any ple as a term employed to signify the negation of all principle, 
thing posi- what one expectg to fin( j i n a principle is something that points 
out some external consideration, as a means of warranting and 
guiding the internal sentiments of approbation and disapproba 
tion : this expectation is but ill fulfilled by a proposition, which i 
does neither more nor less than hold up each of those sentiments 1 j 
as a ground and standard for itself. 

sentiments XIII. In looking over the catalogue of human actions (says,i 
of ?he a prfn n a partizan of this principle) in order to determine which of them i 
f anti- are to ^ marked witll the sea i o f disapprobation, you need but , 
to take counsel of your own feelings : whatever you find in your- I 
self a propensity to condemn, is wrong for that very reason. For ; 
the same reason it is also meet for punishment : in what pro- i 
portion it is adverse to utility, or whether it be adverse to utility I 
at all, is a matter that makes no difference. In that same propor- j 
tion also is it meet for punishment : if you hate much, punish i 

mischief to an inconvenience, says an admired maxim, and the more ad 
mired, because as nothing is expressed by it, the more is supposed to be 

Not that there is any avowed, much less a constant opposition, between 
the prescriptions of utility and the operations of the common law : such con 
stancy we have seen to be too much even for ascetic fervor. [Supra, par. x ] 
From time to time instinct would unavoidably betray them into the paths 
of reason instinct which, however it may be cramped, can never be killed 
by education. The cobwebs spun out of the materials brought together by 
the competition of opposite analogies, can never have ceased being warped 
by the silent attraction of the rational principle : though it should have ; 
been as the needle is by the magnet, without the privity of conscience. 

I.] Of Principles adverse to that of Utility. 17 

nuch : if you hate little, punish little : punish as you hate. If 
hate not at all, punish not at all : the fine feelings of the 
ioul are not to be overborne and tyrannized by the harsh and 
ugged dictates of political utility. 

XIV. The yanoj^sj^te^ formed concerning The systems 

.he standard of right and wrong, may all be reduced to the beeSrmed 
Principle of sympathy and antipathy. One account may serve theSSd 
or all of them. They consist all of them in so many con- 
[rivances for avoiding the obligation of appealing to any external 
tandard, and for prevailing upon the reader to accept of the ciple 
Author s sentiment or opinion as a reason for itself. The phrases 
lifferent, but the principle the same 1 . 

1 It is curious enough to observe the variety of inventions men have hit various 
ipon, and the variety of phrases they have brought forward, in order to Caved as 
onceal from the world, and, if possible, from themselves, this very general ? h ? character- 
nd therefore very pardonable self-sufficiency. !?5iSj5? 

1. One man says, he has a thing made on purpose to tell him what is t t ^ I n n ded sys 
ight and what is wrong ; and that it is called a moral sense : and then he r Mo , s 
oes to work at his ease, and says, such a thing is right, and such a thing 

j wrong why ? because my moral sense tells me it is. 

2. Another man comes and alters the phrase : leaving out moral, and 2- Common 
(feting in common, in the room of it. He then tells you, that his common Sense< 
ense teaches him what is right and wrong, as surely as the other s moral 

ense did : meaning by common sense, a sense of some kind or other, which, 
e says, is possessed by all mankind : the sense of those, whose sense is not 
he same as the author s, being struck out of the account as not worth 
aking. This contrivance does better than the other ; for a moral sense, 
eing a new thing, a man may feel about him a good while without being 
ble to find it out : but common sense is as old as the creation ; and there 
} no man but would be ashamed to be thought not to have as much of it 
s his neighbours. It has another great advantage : by appearing to share 
ower, it lessens envy : for when a man gets up upon this ground, in order 
o anathematize those who differ from him, it is not by a sic volo sicjubeo, 
ut by a velitisjubeatis. 

3. Another man comes, and says, that as to a moral sense indeed, he 3. Under- 
annot find that he has any such thing : that however he has an under- standin ^- 
landing, which will do quite as well. This understanding, he says, is the 
bandard of right and wrong : it tells him so and so. All good and wise 

len understand as he does : if other men s understandings differ in any 
pint from his, so much the worse for them : it is a sure sign they are 
ither defective or corrupt. 

4. Another man says, that there is an eternal and immutable Rule of 4- Rule of 
tight : that that rule of right dictates so and so : and then he begins Right * 
iving you his sentiments upon any thing that comes uppermost : and 

tiese sentiments (you are to take for granted) are so many branches of the 
fcernal rule of right. 

5. Another man, or perhaps the same man (it s no matter) says, that ^jj,} 1 " 688 of 


1 8 Of Principles adverse to that of Utility. [CHAP. 

Thisprin- XV. It is manifest, that .the dictates of this principle wiU 
frequently coincide with those of utility, though perhaps with-. 



thlre are certain practices conformable, and others repugnant to the 
Fitness of Things ; and then he tells you, at his leisure, what practices are 
conformable and what repugnant : just as he happens to like a pract 

dl 6! k rgreat multitude of people are continually talking of the Law of 
NaVu a re. f Nature ? and then they go on giving you their sentiments about what is 
right and what is wrong : and these sentiments, you are to understand, are 
so many chapters and sections of the Law of Nature. 

f 1 7 Instead of the phrase, Law of Nature, you have sometimes Law 
Laso W n.Ri R hl of Reason, Right Reason, Natural Justice, Natural Equity Good Order. 
n Unv of them will do equally well. This latter is most used in politics. 
Th e three last are much more tolerable than the others, because they do , 
not very explicitly claim to be any thing more than phrases : 
but feeb } y upon tne being looked upon as so many positive standards 
themselves, and seem content to be taken, upon occasion, for phrases ex 
pressive of the conformity of the thing in question to the proper standard, 
whatever that may be. On most occasions, however, it will be better t< 
say utility : utility is clearer, as referring more explicitly to pain and I 

P 8? We have one philosopher, who says, there is no harm in any thing in 
the world but in telling a lie : and that if, for example, you were to murder , 
vour own father, this would only be a particular way of saying, he was not i 
vour father Of course, when this philosopher sees any thing that he does . 
not like, he says, it is a particular way of telling a lie It is saying that i 
the act ought to be done, or may be done, when, in truth, it ought not 

Q. e The fairest and openest of them all is that sort of man who speaks out, 
a nd says, I am of the number of the Elect : now God himself takes care toi 
inform the Elect what is right : and that with so good effect, and let them 
strive ever so, they cannot help not only knowing it but practising it. 11 
therefore a man wants to know what is right and what is wrong, he has 
nothing to do but to come to me. 

It is upon the principle of antipathy that such and such acts are often 
obat j Qn the score of their be i ng unnatural : the practice of exposing 
children, established among the Greeks and Romans, was an unnatural 
practice. Unnatural, when it means any thing, means unfrequent : and 
there it means something ; although nothing to the present purpose. J3ut 
here it means no such thing : for the frequency of such acts is perhaps the 
great complaint. It therefore means nothing ; nothing, I mean, which 
there is in the act itself. All it can serve to express is, the disposition oi \ 
the person who is talking of it : the disposition he is in to be angry at the 
thoughts of it. Does it merit his anger? Very likely it may : butwhetnei 
it does or no is a question, which, to be answered rightly, can only b 
answered upon the principle of utility. 

f"^ Unnatural, is as good a word as moral sense, or common sense ; anc 
would be as good a foundation for a system. Such an act is unnatural 

/ that is repugnant to nature : for LdftnoUikfiJiO pra,cja*ulj_^nd, conse- 
quently, do not practise it. It is therefore repugnant to what ought to fo 
.the nature of every body else. 
Mischief thW/ The mischief common to all these ways of thinking and arguing (which 


9. Doctrine of 



ii.] Of Principles adverse to that of Utility. 19 

out infflnrlmnr ipy g1 ir.h thing. Probably more frequently than coincide 

^ ~ ^ * . . with that ol 

not : and hence it is that the business of penal justice is carried utility. 

in truth, as we have seen, are but one and the same method, couched in 
different forms of words) is their serving as a cloke, and pretence, and ali-\ 
ment, to despotism : if not a despotism in practice, a despotism howeve*) 
in r disposition : ""which is but too apt, when pretence and power offer, to 
show itself in practice. The consequence is, that with intentions very 
commonly of the purest kind, a man becomes a torment either to himself 
ar his fellow-creatures. If he be of the melancholy cast, he sits in silent 
*rief, bewailing their blindness and depravity : if of the irascible, he de- 
3laims with fury and virulence against all who differ from him ; blowing up 
the coals of fanaticism, and branding with the charge of corruption and in 
sincerity, every man who does not think, or profess to think, as he does. 

If such a man happens to possess the advantages of style, his book 
may do a considerable deal of mischief before the nothingness of it is 

These principles, if such they can be called, it is more frequent to see 
ipplied to morals than to politics : but their influence extends itself to 
both. In politics, as well as morals, a man will be at least equally glad of 
i pretence for deciding any question in the manner that best pleases him, 
without the trouble of inquiry. If a man is an infallible judge of what is 
right and wrong in the actions of private individuals, why not in the 
measures to be observed by public men in the direction of those actions? 
accordingly (not to mention other chimeras) I have more than once known 
the pretended law of nature set up in legislative debates, in opposition to 
arguments derived from the principle of utility. -N 

But is it never, then, from any other considerations than those of utility ,Vvhether utility 
that we derive our notions of right and wrong ? I do not know: I do i>ie C ^roundof 
aot care. Whether a moral sentiment can be originally conceived from any^^ ^ p er 
Dther source than a view of utility, is one question: whether upon exam- best w7 a V r 
ination and reflection it can, in point of fact, be actually persisted in and ^ration "" 
justified on any other ground, by a person reflecting within himself, is 
mother : whether in point of right it can properly be justified on any other 
ground, by a person addressing himself to the community, is a third. The 
bwo first are questions of speculation : it matters not, comparatively 
speaking, how they are decided. The last is a question of practice : the 
decision of it is of as much importance as that of any can be. 

I feel in myself, (say you) a disposition to approve of such or such an 
iction in a moral view : but this is not owing to any notions I have of its 
being a useful one to the community. I do not pretend to know whether 
it be an useful one or not : it may be, for aught I know, a mischievous 
Dne. But is it then, (say I) a mischievous one? examine ; and if you 
3an make yourself sensible that it is so, then, if duty means any thing, that 
.s, moral duty, it is your duty at least to abstain from it : and more than 
;hat, if it is what lies in your power, and can be done without too great a 
sacrifice, to endeavour to prevent it. It is not your cherishing the notion 
D it in your bosom, and giving it the name of virtue, that will excuse 

I feel in myself, (say you again) a disposition to detest such or such an 
iction in a moral view ; but this is not owing to any notions I have of its 
Deing a mischievous one to the community. I do not pretend to know 
ivhether it be a mischievous one or not : it may be not a mischievous one : 

C 2 

2O Of Principles adverse to that of Utility. [CHAP. 

on upon that tolerable sort of footing upon which we see it car- I 
ried on in common at this day. For what more natural or more 
general ground of hatred to a practice can there be, than the 
mischievousness of such practice ? What all men are exposed 
to suffer by, all men will be disposed to hate. It is far_yet, j: 
however, from being a constant ground : for when -aman suffers, 
it is not always that he knows what it is he suffers -by. A man 
may suffer grievously, for instance, by a new tax, without being 
able to trace up the cause of his sufferings to the injustice of 
some neighbour, who has eluded the payment of an old one. 
- This prin- XVI. The principle of sympathy and antipathy is most apt to > 

ciple is most . . . , 

apt tp err on err on the side of severity. It is for applying punishment im 

the side of . , . , -, 

severity. many cases which deserve none : in many cases wnicn deserve 
some, it is for applying more than they deserve. There is nfl 
incident imaginable, be it ever so trivial, and so remote fro J 
mischief, from which this principle may not extract a groun<H 
of punishment. Any difference in taste : any difference im 
opinion : upon one subject as well as upon another. No disl 
agreement so trifling which perseverance and altercation wil 
not render serious. Each becomes in the other s eyes an enemjl 
and, if laws permit, a criminal 1 . This is one of the circunm 

it may be, for aught I know, an useful one. May it indeed, (say I) al 
useful one? but let me tell you then, that unless duty, and right and wroni 
be just what you please to make them, if it really be not a mischievous one, 
and any body has a mind to do it, it is no duty of yours, but, on the con 
trary, it would be very wrong in you, to take upon you to prevent him : 
detest it within yourself as much as you please ; that may be a very good 
reason (unless it be also a useful one) for your not doing it yourself: but if 
you go about, by word or deed, to do any thing to hinder him, or make him 
suffer for it, it is you, and not he, that have done wrong: it is not your 
setting yourself to blame his conduct, or branding it with the name of vice, 
that will make him culpable, or you blameless. Therefore, if you can make ; 
yourself content that he shall be of one mind, and you of another, about 
that matter, and so continue, it is well : but if nothing will serve you, 
but that you and he must needs be of the same mind, I ll tell you what 
you have to do : it is for you to get the better of your antipathy, not for i 
him to truckle to it. 

1 King James the First of England had conceived a violent antipathj 
against Arians : two of whom he burnt \ This gratification he procurec 
himself without much difficulty : the notions of the times were favourable 
to it. He wrote a furious book against Vorstius, for being what was callei 

i Hume s Hist. vol. 6. 

I.] Of Principles adverse to that of Utility. 21 

tances by which the human race is distinguished (not much 
ndeed to its advantage) from the brute creation. 

XVII. It is not, however, by any means unexampled for this But errs, in 
rinciple to err on the side of lenity. A near and perceptible Sees!" on 
aischief moves antipathy. A remote and imperceptible mis- tenity? e f 
hief, though not less real, has no effect. Instances in proof of 

his will occur in numbers in the course of the work \ It would 
e breaking in upon the order of it to give them here. 

XVIII. It may be wondered, perhaps, that in all this while The theo- 

.o mention has been made of the theological principle ; meaning df ie?iCl 

bat principle which professes to recur for the standard of right ^ 

nd wrong to the will of God. But the case is, this is not in ciple< 

ict a distinct principle. It is never any thing more or less than 

ne or other of the three before-mentioned principles presenting 

;self under another shape. The will of God here meant cannot 

e his revealed will, as contained in the sacred writings : for 

aat is a system which nobody ever thinks of recurring to at this 

me of day, for the details of political administration : and even 

efore it can be applied to the details of private conduct, it is 

i Arminian : for Vorstius was at a distance. He also wrote a furious 
ook, called A Counterblast to Tobacco, against the use of that drug, 
hich Sir Walter Raleigh had then lately introduced. Had the notions of 
le times co-operated with him, he would have burnt the Anabaptist and 
le smoker of tobacco in the same fire. However he had the satisfaction 
: putting Raleigh to death afterwards, though for another crime. 
Disputes concerning the comparative excellence of French and Italian 
.usic have occasioned very serious bickerings at Paris. One of the parties 
IJould not have been sorry (says Mr. D Alembert 1 ) to have brought govern- 
Ij.ent into the quarrel. Pretences were sought after and urged. Long 
pore that, a dispute of like nature, and of at least equal warmth, had been 
Indled at London upon the comparative merits of two composers at 
Ijondon; where riots between the approvers and disapprovers of a new play 
re, at this day, not unfrequent. The ground of quarrel between the Big- 
lidians and the Little-endians in the fable, was not more frivolous than 
i any an one which has laid empires desolate. In Russia, it is said, there 
lias a time when some thousands of persons lost their lives in a quarrel, in 
I hich the government had taken part, about the number of fingers to be 
!ed in making the sign of the cross. This was in days of yore : the 
imsters of Catherine II. are better instructed 2 than to take any other 
Ijirt in such disputes, than that of preventing the parties concerned from 
.:>ing one another a mischief. 
1 See ch. xvi. [Division], par. 42, 44. 

Melanges Essai sur la Liberte de la Musique, a Instruct, art. 474, 475, 476. 

22 Of Principles adverse to that of Utility. [CHAP. 

universally allowed, by the most eminent divines of all persua 
sions, to stand in need of pretty ample interpretations ; else to 
what use are the works of those divines ? And for the guidance 
of these interpretations, it is also allowed, that some other stan 
dard must be assumed. The will then which is meant on this 
occasion, is that which may be called the presumptive will : that 
is to say, that which is presumed to be his will on account of 
the conformity of its dictates to those of some other principle. 
What then may be this other principle ? it must be one or other 
of the three mentioned above : for there cannot, as we have 
seen, be any more. It is plain, therefore, that, setting revelation : 
out of the question, no light can ever be thrown upon thQ 
standard of right and wrong, by any thing that can be said upon 
the question, what is God s will. We may be perfectly sure! 
indeed, that whatever is right is conformable to the will of God $ 
but so far is that from answering the purpose of showing us 
what is right, that it is necessary to know first whether a thing 
is right, in order to know from thence whether it be conformable 
to the will of God 1 . 

Antipathy XIX. There are two things which are very apt to be conj| 
t?ons ?t difl founded, but which it imports us carefully to distinguish : thei 
so right, e is r motive or cause, which, by operating on the mind of an indir 
seiFa right vidual, is productive of any act : and the ground or reason which: 

The principle 1 The principle of theology refers every thing to God s pleasure. Bui 
hlw reducfbie wnat is God s pleasure? God does not, he confessedly does not now, either 
to one or an- speak or write to us. How then are we to know what is his pleasure? By 
other three 3 observing what is our own pleasure, and pronouncing it to be his. Accord- 
principles. ingly,what is called the pleasure of God, is and must necessarily be (revela-| 
tion apart) neither more nor less than the good pleasure of the person,, 
whoever he be, who is pronouncing what he believes, or pretends, to be 
God s pleasure. How know you it to be God s pleasure that such or such 
an act should be abstained from ? whence come you even to suppose as 
much ? Because the engaging in it would, I imagine, be prejudicial upon 
the whole to the happiness of mankind ; says the partizan of the principle 
of utility : Because the commission of it is attended with a gross and 
sensual, or at least with a trifling and transient satisfaction ; says the par 
tizan of the principle of asceticism : Because I detest the thoughts of it ; 
and I cannot, neither ought I to be called upon to tell why ; says he whc 
proceeds upon the principle of antipathy. In the words of one or other oj 
these must that person necessarily answer (revelation apart) who professes 
to take for his standard the will of God. 

ii.] Of Principles advene to that of Utility. 23 

warrants a legislator, or other by-stander, in regarding that act .wound of 
svith an eye of approbation., When the act happens, in the par 
ticular instance in question, to be productive of effects which we 
ipprove of, much more if we happen to observe that the same 
notive may frequently be productive, in other instances, of the 
ike effects, we are apt to transfer our approbation to the motive 
tself, and to assume, as the just ground for the approbation we 
3estow on the act, the circumstance of its originating from that 
notive. It is in this way that the sentiment of antipathy has 
f ten been considered as a just ground of action. Antipathy, for 
nstance, in such or such a case, is the cause of an action which 
s attended with good effects : but this does not make it a right 
ground of action in that case, any more than in any other. Still 
farther. Not only the effects are good, but the agent sees bef ore- 
liand that they will be so. This may make the action indeed a 
perfectly right action : but it does not make antipathy a right 
ground of action. For the same sentiment of antipathy, if im 
plicitly deferred to, may be, and very frequently is, productive of 
the very worst effects. Antipathy, therefore, can never be a 
right ground of action. No more, therefore, can resentment, 
which, as will be seen more particularly hereafter, is but a modi 
fication of antipathy. The only right ground of action, that can 
oossibly subsist, is, after all, the consideration of utility, which, 
i it is a right principle of action, and of approbation, in any one 
mse, is so in every other. Other principles in abundance, that 
.s, other motives, may be the reasons why such and such an act 
has been done : that is, the reasons or causes of its being done : 
3ut it is this alone that can be the reason why it might or ought 
:o have been done. Antipathy or resentment requires always 
:o be regulated, to prevent its doing mischief : to be regulated 
oy what ? always by the principle of utility. The principle 
3f utility neither requires nor admits of any other regulator 
t than itself. 



Connexion I. IT has been shown that the happiness of the individuals, of 
chapterwith whom a community is composed,that is their pleasures and their 
ceding 6 " security, is the end and the sole end which the legislator ought 
to have in view : the sole standard, in conformity to which each 
individual ought, as far as depends upon the legislator, to be 
made to fashion his behaviour. But whether it be this or any 
thing else that is to be done, there is nothing by which a man 
can ultimately be made to do it, but either pain or pleasure. 
Having taken a general view of these two grand objects (viz. 
pleasure, and what comes to the same thing, immunity from 
pain) in the character of final causes ; it will be necessary to 
take a view of pleasure and pain itself, in the character of 
efficient causes or means. 

II. TiLere_are four distinguishable^ sources i Jromjwhich plea 
sure and pain are in use to flow j_ considered separately, they: 
may be termed the physical, thej)oUtical, the moral, and the re? 
ligjous^ and inasmuch as the pleasures and pains belonging to 
each of them are capable of giving a binding force to any la\w 
or rule of conduct, they may all of them be termed sanctions \ 

1 Sanctio, in Latin, was used to signify the act of binding, and, by a 
common grammatical transition, any thing which serves to bind a man : to| 
wit, to the observance of such or such a mode of conduct. According to a 
Latin grammarian \ the import of the word is derived by rather a far-fetched 
process (such as those commonly are, and in a great measure indeed must 
be, by which intellectual ideas are derived from sensible ones) from the 
word sanguis, blood : because, among the Romans, with a view to inculcate 
into the people a persuasion that such or such a mode of conduct would be 

1 Servius. See Ainsworth s Diet, ad verbum Sanctio. 

Four sanc 
tions or 
sources of 
and pain. 

Of the Four Sanctions or Sources of Pain and Pleasure. 35 

III. If it be in the present life, and from the ordinary course 1 - Th . e 

[ nature, not purposely modified by the interposition of the sanction. 

of any human being, nor by any extraordinary interposition 
f any superior invisible being, that the pleasure or the pain 
akes place or is expected, it may be said to issue from or to 
elong to the physical sanction. 

IV. If at the hands of a particular person or set of persons in 2. The 
le community, who under names correspondent to that of 

udge, are chosen for the particular purpose of dispensing it, 
ccording to the will of the sovereign or supreme ruling power 
. the state, it may be said to issue from the political sanction. 

V. If at the hands of such chance persons in the community, 3. The moral 

. . . or popular. 

s the party in question may happen in the course of his life to 
ave concerns with, according to each man s spontaneous dispo- 
tion, and not according to any settled or concerted rule, it may 
e said to issue from the moral or popular sanction 1 . 

VI. If from the immediate hand of a superior invisible being, 4. The 
ther in the present life, or in a future, it may be said to issue 

om the religious sanction. 

VII. Pleasures or pains which may be expected to issue from The piea- 
ic physical, political, or moral sanctions, must all of them be pains which 
xpected to be experienced, if ever, in the present life : those the religious 
hich may be expected to issue from the religious sanction, may may regard 
e expected to be experienced either in the present life or in a present life 

. j or a future. 

Jimdered obligatory upon a man by the force of what I call the religious 

inction (that is, that he would be made to suffer by the extraordinary 
i jiterposition of some superior being, if he failed to observe the mode of 

Dnduct in question) certain ceremonies were contrived by the priests : 

i the course of which ceremonies the blood of victims was made use of. 
i! A Sanction then is a source of obligatory powers or motives : that is, of 
i lins and pleasures ; which, according as they are connected with such or 

ich modes of conduct, operate, and are indeed the only things which can 
i perate, as motives. See Chap. x. [Motives]. 

1 Better termed popular, as more directly indicative of its constituent 
! luse ; as likewise of its relation to the more common phrase public opinion, 
I i French opinion publique, the name there given to that tutelary power, 

: which of late so much is said, and by which so much is done. The latter 
! ppellation is however unhappy and inexpressive ; since if opinion is mate- 

al, it is only in virtue of the influence it exercises over action, through 

le medium of the affections and the will. 

26 Of the Four Sanctions or [CHAP, 

Those which VIII. Those which can be experienced in the present life, 
present life, can of course be no others than such as human nature in the 
soee7 hl h course of the present life is susceptible of : and from each of 
flow, C differ y these sources may flow all the pleasures or pains of which, in! 
cTrc y um- the the course of the present life, human nature is susceptible. WitM 
stances of regar( j to t k ese t j len ^fa which alone we have in this plac* 
production. ^ concern ) t h ose o f them which belong to any one of those 
sanctions, differ not ultimately in kind from those which belong 
to any one of the other three : the only difference there is among 
them lies in the circumstances that accompany their production. 
A suffering which befalls a man in the natural and spontaneous 
course of things, J5hall be styled, for instance, a calamity; in 
which case, if it be supposed to befall him through any impru 
dence of his, it may be styled a punishment issuing from the 
physical sanction. Now this same suffering, if .inflicted by the 
law, will be what is commonly called a punishment ; if incurred 
for want of any friendly assistance, which the misconduct, or 
supposed misconduct, of the sufferer has occasioned to be with- 
holden, a punishment issuing from the moral sanction; if through 
the immediate interposition of a particular providence, a punish 
ment issuing from the religious sanction. 

Example. IX. A man s goods, or his person, are consumed by fire. If 
this happened to him by what is called an accident, it was a* 
calamity : if by reason of his own imprudence (for instance, from 
his neglecting to put his candle out) it may be styled a punish 
ment of the physical sanction : if it happened to him by the 
sentence of the political magistrate, a punishment belonging to 
the political sanction; that is, what is commonly called a punish 
ment : if for want of any assistance which his neighbour with-fc 
held from him out of some dislike to his moral character, a 
punishment of the moral sanction : if by an immediate act oi 
God s displeasure,manif estedon account of some sin committedby 
him, or through any distraction of mind, occasioned by the dread 
of such displeasure, a punishment of the religious sanction x . 

1 A suffering conceived to befall a man by the immediate act of God, as 
above, is of ten, for shortness sake, called a judgment: instead of saying, $ 

in.] Sources of Pain and Pleasure. 27 

X. As to such of the pleasures and pains belonging to the Those which 
religious sanction, as regard a future life, of what kind these future life 
may be we cannot know. These lie not open to our observation, specifically 
During the present life they are matter only of expectation : and, 
whether that expectation be derived from natural or revealed 
religion, the particular kind of pleasure or pain, if it be different 

from all those which lie open to our observation, is what we can 
have no idea of. The best ideas we can obtain of such pains and 
pleasures are altogether unliquidated in point of quality. In 
what other respects our ideas of them may be liquidated will be 
considered in another place \ 

XI. Of these four sanctions the physical is altogether, we may Thephyjiaai 
observe, the ground-work of the political and the moral : so is included in 
it also of the religious, in as far as the latter bears relation to other three. 
the present life. It is included in each of those other three. 

This may operate in any case, (that is, any of the pains or plea- ^-^ 
sures belonging to it may operate) independently of them: none 7 1>< j~ 

them can operate but by means of this. In a word, the powers ^ 
of nature may operate of themselves; but neither the magistrate, f* J$2^ 
nor men at large, can operate, nor is God in the case in ques 
tion supposed to operate, but through the powers of nature. 

XII. For these four objects, which in their nature have so Use of this 
much in common, it seemed of use to find a common name. c 

It seemed of use, in the first place, for the convenience 
of giving a name to certain pleasures and pains, for which 
a name equally characteristic could hardly otherwise have been 
found : in the second place, for the sake of holding up the effi 
cacy of certain moral forces, the influence of which is apt not 
to be sufficiently attended to. Does the political sanction exert 
an influence over the conduct of mankind ? The moral, the 
religious sanctions do so too. In every inch of his career are 
the operations of the political magistrate liable to be aided or 
impeded by these two foreign powers : who, one or other of 

suffering inflicted on him in consequence of a special judgment formed,and 
resolution thereupon taken, by the Deity. 
See ch. xiii. [Cases unmeet] par. 2. note. 

28 Of the Four Sanctions or Sources of Pain and Pleasure. 

them, or both, are sure to be either his rivals or his allies. Does 
it happen to him to leave them out in his calculations ? he will 
be sure almost to find himself mistaken in the result. Of all 
this we shall find abundant proofs in the sequel of this work. 
It behoves him, therefore, to have them continually before his . 
eyes ; and that under such a name as exhibits the relation they 
bear to his own purposes and designs. 



I. PLEASURES then, and the avoidance of pains, are the ends Use of this 
hich the legislator has in view : it behoves him therefore to chapte! 

inderstand their value. Pleasures and pains are the instruments 
e has to work with : it behoves him therefore to understand 
leir force, which is again, in other words, their value. 

II. To a person considered by himself, the value of a pleasure Circum- 
r pain considered by itself, will be greater or less, according 

le four following circumstances l : 
I. Its intensity. 

Tt /7ur/rffVv pleasure or 

* L auranon. pain con - 

3. Its certainty or uncertainty. 

4. Its propinquity or remoteness. 

III. These are the circumstances which are to be considered by ltselfl 

L estimating a pleasure or a pain considered each of them by Adored as 
Jjaelf . But when the value of any pleasure or pain is considered withotS 
I; or the purpose of estimating the tendency of any act by which 

: is produced, there are two other circumstances to be taken 

ito the account ; these are, 

1 These circumstances have since been denominated elements or dimen- 
Ions of value in a pleasure or a pain. 

Not long after the publication of the first edition, the following memo- 
ter verses were framed, in the view of lodging more effectually, in the 
: lemory, these points, on which the whole fabric of morals and legislation 
lay be seen to rest. 

Intense, long, certain, speedy, fruitful, pure 

Such marks in pleasures and in pains endure. 

Sueh pleasures seek if private be thy end : 

If it be public, wide let them extend. 

Such pains avoid, whichever be thy view : 

If pains must come, let them extend to few. 

30 Value of a Lot of Pleasure or Pain, [CHAI 

5. Its fecundity, or the chance it has of being followed b 
sensations of the same kind : that is, pleasures, if it be a pi 
sure : pains, if "it" Be a pain. 

6. ltsj)urity, or the chance it has of not being followed bj 
sensations^oTEhe opposite kind : that is, pains, if it be a pleasure: 
pleasures, if it be a pain. 

These two last, however, are iri_frip.t.nftaa scarcely tobe deemed I 
properties^)! the pleasure or the pain itself; they are not, there 
fore, inTfcrictness to be taken into the account of the value of 
that pleasure or that pain. They are in strictness to be deemed 
properties only of the act, or other event, by which such plea 
sure or pain has been produced ; and accordingly are only to be 
taken into the account of the tendency of such act or such event. 

IV. To a number of persons, with reference to each of whom 
the value of a pleasure or a pain is considered, it will be greateE 
persons? 1 " f or less, according to seven circumstances : to wit, the six pre- 
ceding ones ; viz. 

1. Its intensity. 

2. Its duration. 

3. Its certainty or uncertainty. 

4. Its propinquity or remoteness. 

5. Its fecundity. 

6. Its purity. 

And one other ; to wit : 

7. Its extent ; that is, the number of persons to whom i 
^extends ; or (in other words) who are affected by it. 

Process for V. To take an exact account then of the general tendency o 
any act, by which the interests of a community are affected 
proceed as follows. Begin with any one person of those whos 
interests seem most immediately to be affected by it : and takl 
an account, 

1. Of the value of each distinguishable pleasure which appeal 
to be produced by it in the first instance. 

2. Of the value of each pain which appears to be produced b 
it in the first instance. 

3. Of the value of each pleasure which appears to be produce 

v."| low to be Measured. 31 

y it after the first. This constitutes the fecundity of the first 
leasure and the impurity of the first pain. 

4. Of the value of each pain which appears to be produced 
y it after the first. This constitutes the fecundity of the first 
am, and the impurity of the first pleasure. 

5. Sum up all the values of all the pleasures on the one side, 
ad those of all the pains on the other. The balance, if it be on 
le side of pleasure, will give the good tendency of the act upon 
ic whole,with respect to the interests of that individual person ; 

on the side of pain, the bad tendency of it upon the whole. 

6. Take an account of the number of persons whose interests 
ppear to be concerned ; and repeat the above process with re 
ject to each. Sum up the numbers expressive of the degrees 
[ good tendency, which the act has, with respect to each indi- 
idual, in regard to whom the tendency of it is good upon the 
hole : do this again with respect to each individual, in regard 

whom the tendency of it is good upon the whole : do this 
gain with respect to each individual, in regard to whom the 
endency of it is bad upon the whole. Take the balance; which, 
: on the side of pleasure, will give the general good tendency of 
he act, with respect to the total number or community of indi- 

i iduals concerned; if on the side of pain, the geneY&leviltendency, 
nth respect to the same community. 
! VI. It is not to be expected that thisprocess shouldbe strictly Use of the 

. i foregoing 

!i ursued previously to every moral ]udgment, or to every legis- process. 
Ritive or judicial operation. It may, however, be always kept 
li view : and as near as the process actually pursued on these 
f-jccasions approaches to it, so near will such process approach 
< ;0 the character of an exact one. 

1 VII. The same process is alike applicable to pleasure and Th 
, i>ain, in whatever shape they appear : and by whatever denom- 

i aation they are distinguished : to pleasure, whether it be galled evil, profit 
ood (which is properly the cause or instrument of pleasure) or chief, and ail 

J . -other modi - 

I wofit (which is distant pleasure, or the cause or instrument or flcations of 

7 - 7 pleasure and 

.istant pleasure,) or convenience, or advantage, oenejit, emotu-pam. 
lent, happiness, and so forth : to pain, whether it be called evil, 

32 Value of a Lot of Pleasure or Pain, how to be Measured. 

(which corresponds to good] or mischief, or inconvenience, or 
disadvantage, or loss, or unhappiness, and so forth. 

Conformity VIII. Nor is this a novel and unwarranted, any more than it 
practice to is a useless theory. In all this there is nothing but what the 
practice of mankind, wheresoever they have a clear view of their 
own interest, is perfectly conformable to. An article of property^ 
an estate in land, for instance, is valuable, on what account 1 
On account of the pleasures of all kinds which it enables a man 
to produce, and what comes to the same thing the pains of all 
kinds which it enables him to avert. But the value of such an 
article of property is universally understood to rise or fall ac 
cording to the length or shortness of the time which a man has 
in it : the certainty or uncertainty of its coming into possession : 
and the nearness or remoteness of the time at which, if at all, it 
is to come into possession. As to the intensity of the pleasures 
which a man may derive from it, this is never thought of, be: 
cause it depends upon the use which each particular person may 
come to make of it ; which cannot be estimated JilLthe par 
ticular pleasures he may come to derive from it, or the particular 
pains he may come to exclude by means of it, are brought to 
view. For the same reason, neither does he think of the fe 
cundity or purity of those pleasures. 

Thus much for pleasure and pain, happiness and unhappiness^ 
in general We come now to consider the several particular 
kinds of pain and pleasure. 



I. HAVING represented what belongs to all sorts of pleasures 

nd pains alike, we come now to exhibit, each by itself, the are either 
everal sorts of pains and pleasures. Pains and pleasures may or, 2. Com- 
^e called by one general word, interesting perceptions. Interest- P 
ig perceptions are either simple or complex. The simple onS 
re those which cannot any one of them be resolved into more : 
pleY^ar^Jhose.. which are resolvable into divers simple 
5es7 A complex interesting perception may accordingly be 
[ omposed either, I. Of pleasures alone : 2. Of pains alone : 
ir, 3. Of a pleasure or pleasures, and a pain or pains to- 
ether. What determines a lot of pleasure, for example, to be 
egarded as one complex pleasure, rather than as divers simple 
ines, is the nature of the exciting cause. Whatever pleasures 
re excited all at once by the action of the same cause, are apt 
D be looked upon as constituting all together but one pleasure. 

II. The several simple pleasures of which human nature is The simple 

11 -i < TI mi i P pleasures 

usceptible, seem to be as follows : I. The pleasures of sense, enumerated. 
. The pleasures of wealth. 3. The pleasures of skill. 4. The 
leasures of amity. 5. The pleasures of a good name. 6. The 
leasures of power. 7. The pleasures of piety. 8. The pleasures 
f benevolence. 9. The pleasures of malevolence. 10. The plea- 
ores of memory, n. The pleasures of imagination. 12. The 
leasures of expectation. 13. The pleasures dependent on asso- 
iation. 14. The pleasures of relief. 

III. The several simple pains seem to be as follows : I. The The simple 
ains of privation. 2. The pains of the senses. 3. The pains of enumerated. 


34 Pleasures and Pains. [CHAP. 

awkwardness. 4. The pains of enmity. 5. The pains of an ill 
name. 6. The pains of piety. 7. The pains of benevolence. 
8. The pains of malevolence. 9. The pains of the memory. 
10. The pains of the imagination, n. The pains of expectation. 
12. The pains dependent on association 1 . 
Pleasures of IV. I. The pleasures of sense seem to be as follows : I. The 

sense enu- .. , -, . , , 

merated. pleasures of the taste or palate ; including whatever pleasures 
are experienced in satisfying the appetites of hunger and thirst. 
2. The pleasure of intoxication. 3. The pleasures of the organ 
of smelling. 4. The pleasures of the touch. 5. The simple 
pleasures of the ear ; independent of association. 6. The simple 
pleasures of the eye ; independent of association. 7. The plea 
sure of the sexual sense. 8. The pleasure of health : or, the 
internal pleasureable feeling or flow of spirits (as it is called,) 
which accompanies a state of full health and vigour ; especially 
at times of moderate bodily exertion. 9. The pleasures of novelty: 
or, the pleasures derived from the gratification of the appetite 
of curiosity, by the application of new objects to any of the 

senses 2 . 

Pleasures of V. 2. By the pleasures of wealth may be meant those plea-^ 
w8ch h aie sures which a man is apt to derive from the consciousness ol 
acquisition possessing any article or articles which stand in the list of in- ) 
session?" struments of enjoyment orsecurity, and more particularly at the^ 
time of his first acquiring them ; at which time the pleasure f 
may be styled a pleasure of gain or a pleasure of acquisition : ai 
other times a pleasure of possession. 
3. Pleasures 3. The pleasures of skill, as exercised upon particular objects 

Analytical * The catalogue here given, is what seemed to be a complete list of tb / 

vi .e w^ why none gevera j s j m pi e pleasures and pains of which human nature is susceptible 
insomuch, that if, upon any occasion whatsoever, a man feels pleasure o 1 
pain, it is either referable at once to some one or other of these kinds, o / 
resolvable into such as are. It might perhaps have been a satisfaction t 
the reader, to have seen an analytical view of the subject, taken upon ai j 
exhaustive plan, for the purpose of demonstrating the catalogue to be wha 
it purports to be, a complete one. The catalogue is in fact the result c 
such an analysis; which, however, I thought it better to discard at presenl 
as being of too metaphysical a cast, and not strictly within the limits of thi 
design. See ch. xiii. [Cases unmeet], par. 2. Note. 

* There are also pleasures of novelty, excited by the appearance of ne 1 
ideas : these are pleasures of the imagination. See infra xiii. 

v.] Pleasures and Pains. 35 

are those which accompany the application of such particular 
instruments of enjoyment to their uses, as cannot be so applied 
without a greater or less share of difficulty or exertion 1 . 

VI. 4. The pleasures of amity, or self -recommendation, are the 4. Pleasures 
pleasures that may accompany the persuasion of a man s being 

in the acquisition or the possession of the good- will of such or 
such assignable person or persons in particular : or, as the phrase 
j is, of being upon good terms with him or them : and as a fruit 
3f it, of his being in a way to have the benefit of their spon- 
baneous and gratuitous services. 

VII. 5. The pleasures of a good name are the pleasures that 5. Pleasures 
iccompany the persuasion of a man s being in the acquisition name? d 
)r the possession of the good-will of the world about him ; that 

J3.s, of such members of society as he is likely to have concerns 
ivith ; and as a means of it, either their love or their esteem, or 
3oth : and as a fruit of it, of his being in the way to have the 
Benefit of their spontaneous and gratuitous services. These may 
ikewise be called the pleasures of good repute, the pleasures of 
lonour, or the pleasures of the moral sanction 2 . 

VIII. 6. The pleasures of power are the pleasures that ac- e. Pleasures 
company the persuasion of a man s being in a condition to dis- 

3ose people, by means of their hopes and fears, to give him the 
Denefit of their services : that is, by the hope of some service, or 
}y the fear of some disservice, that he may be in the way to 
ender them. 

IX. 7. The pleasures of piety are the pleasures that accompany 7. Pleasures 
;he belief of a man s being in the acquisition or in possession of 

-he good- will or favour of the Supreme Being : and as a fruit 
>f it, of his being in a way of enjoying pleasures to be received 
>y God s special appointment, either in this life, or in a life to 
;ome. These may also be called the pleasures of religion, the 

1 For instance, the pleasure of being able to gratify the sense of hearing, 
>y singing, or performing upon any musical instrument. The pleasure thus 
(btained, is a thing superadded to, and perfectly distinguishable from, that 
yhich a man enjoys from hearing another person perform in the same 

* See ch. iii. [Sanctions]. 

D 2 

36 Pleasures and Pains. [CHAP. 

pleasures of a religious disposition, or the pleasures of the 
religious sanction 1 . 
s. Pleasures X. 8. The pleasures of benevolence are the pleasures resulting 
from the view of any pleasures supposed to be possessed by the 

vm beings who may be the objects of benevolence ; to wit, the sensi 
tive beings we are acquainted with; under which are commonly 
included, I. The Supreme Being. 2. Human beings. 3. Other 
animals. These may also be called the pleasures of good- will, 
the pleasures of sympathy, or the pleasures of the benevolent or 
social affections. 

9. Pleasures XI. Q. The pleasures of malevolence are the pleasures result- 

of malevo- . . 

lence or ill- ing from the view of any pain supposed to be suffered by the 
beings who may become the objects of malevolence : to wit, 
I. Human beings. 2. Other animals. These may also be styled 
the pleasures of ill-will, the pleasures of the irascible appetite, 
the pleasures of antipathy, or the pleasures of the malevolent or 
dissocial affections. 

10. Pleasures XII. io. The pleasures of the memory are the pleasures which, 
memory, after having enjoyed such and such pleasures, or even in some 

case after having suffered such and such pains, a man will now 
and then experience, at recollecting them exactly in the ordei 
and in the circumstances in which they were actually enjoyed 01 * 
suffered. These derivative pleasures may of course be distin- * 
guished into as many species as there are of original perceptions 
from whence they may be copied. They may also be stylec 
pleasures of simple recollection. 

n.pieasures XIII. ii. The pleasures of the imagination are the pleasure; 

imagination, which may be derived from the contemplation of any sucl* 
pleasures as may happen to be suggested by the memory, but ii { 
a different order, and accompanied by different groups of circum 
stances. These may accordingly be referred to any one of th ! 
three cardinal points of time, present, past, or future. It i 
evident they may admit of as many distinctions as those of th 
former class. 

^.Pleasures XIV. 12. The pleasures of expectation are the pleasures tha 

1 See ch. iii. [Sanctions]. 

v.] Pleasures and Pains. 37 

result from the contemplation of any sort of pleasure, referred of expecta- 
to time future, and accompanied with the sentiment of belief. 
These also may admit of the same distinctions 1 . 

XV. 13. The pleasures of association are the pleasures which is.Pieasures 
certain objects or incidents may happen to afford, not of them- 

selves, but merely in virtue of some association they have con 
tracted in the mind with certain objects or incidents which are 

in themselves pleasurable. Such is the case, for instance, with 
the pleasure of skill, when afforded by such a set of incidents as 
sompose a game of chess. This derives its pleasurable quality 
from its association partly with the pleasures of skill, as exer- 
sised in the production of incidents pleasurable of themselves : 
partly from its association with the pleasures of power. Such is 

ijbhe case also with the pleasure of good luck, when afforded by 
such incidents as compose the game of hazard, or any other game 

j bf chance, when played at for nothing. This derives its plea- 
mrable quality from its association with one of the pleasures of 

wealth ; to wit, with the pleasure of acquiring it. 

XVI. 14. Farther on we shall see pains grounded upon plea- i4.Piensures 

. T . of relief. 

;ures; in like manner may we now see pleasures grounded upon 
pains. To the catalogue of pleasures may accordinglybe added 
;he pleasures of relief: or, the pleasures which a man experiences 
vhen, after he has been enduring a pain of any kind for a certain 
ime, it comes to cease, or to abate. These may of course be 
listinguished into as many species as there are of pains : and 
nay give rise to so many pleasures of memory, of imagination, 
. ind of expectation. 

XVII. i. Pains of privation are the pains that may result i. Pains of 
rom the thought of not possessing in the time present any of 

: he several kinds of pleasures. Pains of privation may accord- 
; ngly be resolved into as many kinds as there are of pleasures to 
vhich they may correspond, and from the absence whereof they 
: nay be derived. 

XVIII. There are three sorts of pains which are only so These in 


1 In contradistinction to these, all other pleasures may be termed plea- 
ures of enjoyment. 

38 Pleasures and Pains. [CHAP. 

desire" f man ^ modifications of the several pains of privation. When the 
enjoyment of any particular pleasure happens to be particularly 
desired, but without any expectation approaching to assurance, 
the pain of privation which thereupon results takes a particular 
name, and is called the pain of desire, or of unsatisfied desire. 

2. Pains of XIX. Where the enjoyment happens to have been looked for 

ment, with a degree of expectation approaching to assurance, and that 

expectation is made suddenly to cease, it is called a pain of dis 

regret! 8 f XX ^ P a * n ^ P r i va ti n takes the name of a pain of regret 
in two cases : I. Where it is grounded on the memory of a 
pleasure, which having been once enjoyed, appears not likely to 
be enjoyed again : 2. Where it is grounded on the idea of a 
pleasure, which was never actually enjoyed, nor perhaps so much r 
as expected, but which might have been enjoyed (it is supposed,) ! 
had such or such a contingency happened, which, in fact, did . 
not happen. 

thf senses XXI. 2. The several pains of the senses seem to be as fol 
lows : i. The pains of hunger and thirst : or the disagreeable 
sensations produced by the want of suitable substances which 
need at times to be applied to the alimentary canal. 2. The ! 
pains of the taste : or the disagreeable sensations produced by the : 
application of various substances to the palate, and other supe- i 
rior parts of the same canal. 3. The pains of the organ of 
smell : or the disagreeable sensations produced by the effluvia 
of various substances when applied to that organ. 4. The pains 
of the touch: or the disagreeable sensations produced by the ap 
plication of various substances to the skin. 5. The simple pains *. 
of the hearing : or the disagreeable sensations excited in the 
organ of that sense by various kinds of sounds : independently ! 
(as before,) of association. 6. The simple pains of the sight: 01 
the disagreeable sensations if any such there be, that may bt 
excited in the organ of that sense by visible images, independenl 
of the principle of association. 7 1 . The pains resulting fron 

N amre * r ^ e P^ easure f t ne sexual sense seems to have no positive pain t( 
correspond to it : it has only a pain of privation, or pain of the menta 

Pleasures and Pains. 39 

cessive heat or cold, unless these be referable to the touch. 
The pains of disease : or the acute and uneasy sensations 
l-esulting from the several diseases and indispositions to which 
i |iuman nature is liable. 9. The pain of exertion, whetherbodily 
>r mental : or the uneasy sensation which is apt to accompany 
iny intense effort, whether of mind or body. 

XXII. 3 1 . The pains of awkwardness are the pains which 3. 

i (sometimes result from the unsuccessful endeavour to apply any ness. 

mrticular instruments of enjoyment or security to their uses, or 
1 rom the difficulty a man experiences in applying them 2 . 

XXIII. 4. The pains of enmity are the pains that may accom- 4. Pains of 
i oany the persuasion of a man s being obnoxious to the ill-will of 

L|;uch or such an assignable person or persons in particular : or, 
(is the phrase is, of being upon ill terms with him or them : and, 

in consequence, of being obnoxious to certain pains of some sort 

>r other, of which he may be the cause. 

XXIV. 5. The pains of an ill-name, are the pains that ac- 5. Pains of 
jompany the persuasion of a man s being obnoxious, or in a way 

;o be obnoxious to the ill-will of the world about him. These 
>nay likewise be called the pains of ill-repute, the pains of dis- 
lonour, or the pains of the moral sanction 3 . 

ilass, the pain of unsatisfied desire. If any positive pain of body result pleasure of the 
rom the want of such indulgence, it belongs to the head of pains of disease. se3 

1 The pleasures of novelty have no positive pains corresponding to them. NO positive 
Che pain which a man experiences when he is in the condition of not know- spo*nd C olhe 
ng what to do with himself, that pain, which in French is expressed by a pleasure of 
tingle word ennui, is a pain of privation: a pain resulting from the absence, no 
lot only of all the pleasures of novelty, but of all kinds of pleasure whatso 

The pleasures of wealth have also no positive pains corresponding to _ nor to those 
;hem : the only pains opposed to them are pains of privation. If any posi- of wealth - 
)ive pains result from the want of wealth, they are referable to some other 
;lass of positive pains ; principally to those of the senses. From the want 
rf food, for instance, result the pains of hunger; from the want of clothing, 
iihe pains of cold ; and so forth. 

* It may be a question, perhaps, whether this be a positive pain of itself, is this a dis- 
Dr whether it be nothing more than a pain of privation, resulting from the [KarooS* 
consciousness of a want of skill. It is, however, but a question of words, p ^ a i f on? 
aor does it matter which way it be determined. 

8 In as far as a man s fellow-creatures are supposed to be determined by The positive 
any event not to regard him with any degree of esteem or good will, or to 5!^*} jj e 
regard him with a less degree of esteem or good will than they would other- pains of P riva- 

40 Pleasures and Pains. [CHAP. 

e. Pains of XXV. 6 l . The pains of piety are the pains that accompany 
the belief of a man s being obnoxious to the displeasure of the 
Supreme Being : and in consequence to certain pains to be 
inflicted by his especial appointment, either in this life or in a 
life to come. These may also be called the pains of religion ; 
the pains of a religious disposition ; or the pains of the religious i 
sanction. When the belief is looked upon as well-grounded, 
these pains are commonly called religious terrors ; when looked 
upon as ill-grounded, superstitious terrors 2 . 

7. Pains of XXVI. 7. The pains of benevolence are the pains resulting 
benevolence... , x . 

from the view of any pains supposed to be endured by other 

beings. These may also be called the pains of good-will, of 
sympathy, or the pains of the benevolent or social affections. 

8. Pains of XXVII. 8. The pains of malevolence are the pains resulting 
malevolence.. , ,-,-,, 

irom tne view ot any pleasures supposed to be enjoyed by any ! 

beings who happen to be the objects of a man s displeasure, j 
These may also be styled the pains of ill-will, of antipathy, or 
the pains of the malevolent or dissocial affections. 

9. Pains of XXVIII. g. The pains of the memory may be grounded on 

thememory. / i_ i i * . , 

every one 01 tne above kinds, as well 01 pains of privation as 
of positive pains. These correspond exactly to the pleasures of i 
the memory. 

10. Pains of XXIX. io. Thepains of the imagination may also be grounded ( 

tion, opposed wise ; not to do him any sorts of good offices, or not to do him so many , 
pictures of a 9d ffi ces as they would otherwise ; the pain resulting from such consider- 
run?n"o a one ation ma y be reckoned a pain of privation : as far as they are supposed to i 
another. regard him with such a degree of aversion or disesteem as to be disposed to 

do him positive ill offices, it may be reckoned a positive pain. The pain oi 

privation, and the positive pain, in this case run one into another indis- 1 


pzii? s cont l There seem to be no positive pains to correspond to the pleasures oJ { 
spond to the power. The pains that a man may feel from the want or the loss of power, i 
pleasures of j n as f ar as power j s distinguished from all other sources of pleasure, seen ! 

to be nothing more than pains of privation. 

T ains P of let * "^ e positive pains of piety, and the pains of privation, opposed to the 
andth e pains pleasures of piety, run one into another in the same manner as the positive 
opposed tTthe pains of enmit y> or of an ill name, do with respect to the pains of privation, 
pleasures of opposed to the pleasures of amity, and those of a good name. If what if / 
on^another? apprehended at the hands of God is barely the not receiving pleasure, th< 

pain is of the privative class : if, moreover, actual pain be apprehended, il i 

is of the class of positive pains. 

Pleasures and Pains. 41 

m any one of the above kinds, as well of pains of privation as the imagina- 
)f positive pains : in other respects they correspond exactly to 
;he pleasures of the imagination. ^^J^^AA^- 

XXX. ii. The pains of expectation may be grounded on each 11- ^Jgg^J 
me of the above kinds, as well of pains of privation as of posi- 

ive pains. These may be also termed pains of apprehension x . 

XXXI. 12. The pains of association correspond exactly to 12. Pains of 

. association. 

;ne pleasures ot association. 

XXXII. Of the above list there are certain pleasures and Pleasures 

, . , ,, . ~ T . and pains 

>ams which suppose the existence of some pleasure or pain are either 
>f some other person, to which the pleasure or pain of the per- ing or extra- 
on in question has regard : such pleasures and pains may be re! 
ermed extra-regarding. Others do not suppose any such thing : 
hese may~bV termed self-regarding 2 . The only pleasures and 
>ains of the extra-regarding class are those of benevolence and 
hose of malevolence : all the rest are self-regarding 3 . 

XXXIII. Of all these several sorts of pleasures and pains, there in what 

3 scarce any one which is not liable, on more accounts than one, law is con- 
o come under the consideration of the law. Is an offence com- the above 
aitted ? It is the tendency which it has to destroy, in such or pleasures. 
luch persons, some of these pleasures, or to produce some of 
jhese pains, that constitutes the mischief of it, and the ground 
or punishing it. It is the prospect of some of these pleasures, 
IT of security from some of these pains, that constitutes the 
active or temptation, it is the attainment of them that consti- 
utes the profit of the offence. Is the offender to be punished ? 
: ;t can be only by the production of one or more of "these pains, 
hat the punishment can be inflicted 4 . 

1 In contradistinction to these, all other pains may be termed pains of 
t a See chap. x. [Motives]. 

3 By this means the pleasures and pains of amity may be the more Pleasures and 
I tearly distinguished from those of benevolence : and on the other hand, jftnmity ity 
; tiose of enmity from those of malevolence. The pleasures and pains of distinguished 

i mity and enmity are of the self -regarding cast : those of benevolence and bSSvofcnaT 
i lalevolence of the extra-regarding. f e n n d c alevo ~ 

4 It would be a matter not only of curiosity, but of some use, to exhibit complex 
catalogue of the several complex pleasures and pains, analyzing them at g^^ned 
le same time into the several simple ones, of which they are respectively why. 

42 Pleasures and Pains. 

composed. But such a disquisition would take up too much room to be ad 
mitted here. A short specimen, however, for the purpose of illustration, 
can hardly be dispensed with. - 

specimen. The pleasures taken in at the eye and ear are generally very complex. 

country 65 * Tne pleasures of a country scene, for instance, consist commonly, amongst 

prospect. others, of the following pleasures : 

I. Pleasures of the senses. 

1. The simple pleasures of sight, excited by the perception of agreeable 
colours and figures, green fields, waving foliage, glistening water, and the 

2. The simple pleasures of the ear, excited by the perceptions of the 
chirping of birds, the murmuring of waters, the rustling of the wind among 
the trees. 

3. The pleasures of the smell, excited by the perceptions of the fragrance 
of flowers, of new-mown hay, or other vegetable substances, in the first 
stages of fermentation. 

4. The agreeable inward sensation, produced by a brisk circulation oi 
the blood, and the ventilation of it in the lungs by a pure air, such as thai 
in the country frequently is in comparison of that which is breathed ir 

II. Pleasures of the imagination produced by association. 

1. The idea of the plenty, resulting from the possession of the object! i 
that are in view, and of the happiness arising from it. 

2. The idea of the innocence and happiness of the birds, sheep, cattle ! 
dogs, and other gentle or domestic animals. 

3. The idea of the constant flow of health, supposed to be enjoyed by al 
these creatures : a notion which is apt to result from the occasional flow o 
health enjoyed by the supposed spectator. 

4. The idea of gratitude, excited by the contemplation of the all-powerfu 
and beneficent Being, who is looked up to as the author of these blessings 

These four last are all of them, in some measure at least, pleasures c ~ 

The depriving a man of this groupe of pleasures is one of the evils apt t 
result from imprisonment ; whether produced by illegal violence, or in th ( 
way of punishment, by appointment of the laws. 



I. PAIN and pleasure are produced in men s minds by the Pain and 

,- r , . pleasure not 

ction or certain causes. But the quantity of pleasure and pain uniformly 
uns not uniformly in proportion to the cause ; in other words, tSed to 
o the quantity of force exerted by such cause. The truth of 
us observation rests not upon any metaphysical nicety in the 
nport given to the terms cause, quantity, and force : it will 
e equally true in whatsoever manner such force be measured. 

II. The disposition which any one has to feel such or such a Degree or 
uantity of pleasure or pain, upon the application of a cause of of seSi- 
iven force, is what we term the degree or quantum of his llty> what< 
ensibility. This may be either general, referring to the sum 

f the causes that act upon him during a given period : or par- 
Icular, referring to the action of any one particular cause, or 
ort of cause. 

III. But in the same mind such and such causes of pain or Bias or 
leasure will produce more pain or pleasure than such or such sensiSiity, 
ther causes of pain or pleasure : and this proportion will in whs 
ifferent minds be different. The disposition which any one has 

a have the proportion in which he is affected by two such 
auses, different from that in which another man is affected 
y the same two causes, may be termed the quality or bias of 
is sensibility. One man, for instance, may be most affected 
y the pleasures of the taste ; another by those of the ear. So 
Iso, if there be a difference in the nature or proportion of two 
ains or pleasures which they respectively experience from the 
ame cause ; a case not so frequent as the former. From the 
ame injury, for instance, one man may feel the same quantity 

44 Of Circumstances influencing Sensibility. [CHAP. 

of grief and resentment together as another man : but one oJ 

them shall feel a greater share of grief than of resentment : the 

other, a greater share of resentment than of grief. 

causes* ^ ^^ incident which serves as a cause, either of pleasure 

pleasurable or of pain, may be termed an exciting cause : if of pleasure, * 


, pleasurable cause : if of pain, a painful, afflictive, or dolorifi< 

cause 1 . 
Circum- V. Now the quantity of pleasure, or of pain, which a man ii 

stances in- .. , /* i v . r 

fluenciry? liable to experience upon the application of an exciting cause 

what. * 1 since they will not depend altogether upon that cause, will de 

pend in some measure upon some other circumstance or circum 

stances: these circumstances, whatsoever they be, may be terme< 

circumstances influencing sensibility 2 . 

Circum- VI. These circumstances will apply differently to differen 

stances in- . . . ... 

fluencing exciting causes ; insomuch that to a certain exciting cause, 


enumerated, certain circumstance shall not apply at all, which shall appl | 
with great force to another exciting cause. But without entei j 
ing for the present into these distinctions, it may be of use t 
sum up all the circumstances which can be found to influenc 
the effect of any exciting cause. These, as on a former occasioi 
it maybe as wellfirst to sum up together in the concisest manne , 
possible, and afterwards to allot a few words to the separate ej 
planation of eacharticle. Theyseem to be as follows : I. Healtl 
2. Strength. 3. Hardiness. 4. Bodily imperfection. 5. Quai I 
tity and quality of knowledge. 6. Strength of intellect ! 
powers. 7. Firmness of mind. 8. Steadiness of mind. 9. Bei i 
of inclination. 10. Moral sensibility, n. Moral biases. 12. R< 

1 The exciting cause, the pleasure or pain produced by it, and the intei d 
tion produced by such pleasure or pain in the character of a motive, a: 
objects so intimately connected, that, in what follows, I fear I have not, < i 
every occasion, been able to keep them sufficiently distinct. I thought i 
necessary to give the reader this warning ; after which, should there 1 i 
found any such mistakes, it is to be hoped they will not be productive 
much confusion. 

2 Thus, in physical bodies, the momentum of a ball put in motion 1 
impulse, will be influenced by the circumstance of gravity : being in sor 
directions increased, in others diminished by it. So in a ship, put in motii 
by the wind, the momentum and direction will be influenced not only 1 
the attraction of gravity, but by the motion and resistance of thewater,aj 
several other circumstances. 

p.] Of Circumstances influencing Sensibility. 45 

gious sensibility. 13. Religious biases. 14. Sympathetic sen- 
ibility. 15. Sympathetic biases. 16. Antipathetic sensibility. 
7. Antipathetic biases. 18. Insanity. 19. Habitual occupa- 
jions. 20. Pecuniary circumstances. 21. Connexions in the 
ray of sympathy. 22. Connexions in the way of antipathy. 
13. Radical frame of body. 24. Radicalframe of mind. 25. Sex. 
!6.Age. 27. Rank. 28. Education. 29. Climate. 30. Lineage, 
r. Government. 32. Religious profession 1 . 

VII. i. Health is the absence of disease, and consequently of i. Health. 

1 those kinds of pain which are among the symptoms of disease. 

man may be said to be in a state of health when he is not 
mscious of any uneasy sensations, the primary seat of which 
in be perceived to be anywhere in his body 2 . In point of 

1 An analytical view of all these circumstances will be given at the con- Extent and in. 
usion of the chapter : to which place it was necessary to refer it, as itjj^2t, ofthl * 
puld not well have been understood, till some of them had been previously 
k plained. 

i To search out the vast variety of exciting or moderating causes, by which 
iie degree or bias of a man s sensibility may be influenced, to define the 
iDundaries of each, to extricate them from the entanglements in which they 
re involved, to lay the effect of each article distinctly before the reader s 
7e, is, perhaps, if not absolutely the most difficult task, at least one of the 
.ost difficult tasks, within the compass of moral physiology. Disquisitions 
i this head can never be completely satisfactory without examples. To 
rovide a sufficient collection of such examples, would be a work of great 
bour as well as nicety : history and biography would need to be ran- 
Lcked : a vast course of reading would need to be travelled through on 
.orpose. By such a process the present work would doubtless have been 
!:ndered more amusing ; but in point of bulk, so enormous, that this single 
lapter would have been swelled into a considerable volume. Feigned 
ises, although they may upon occasion serve to render the general matter 
derably intelligible, can never be sufficient to render it palatable. On 
us therefore, as on so many other occasions, I must confine myself to dry 
id general instruction : discarding illustration, although sensible that 
ithout it instruction cannot manifest half its efficacy. The subject, how- 
rer, is so difficult, and so new, that I shall think I have not ill succeeded, 
without pretending to exhaust it, I shall have been able to mark out the 
incipal points of view, and to put the matter in such a method as may 
cilitate the researches of happier inquirers. 

The great difficulty lies in the nature of the words; which are not, like 
lin and pleasure, names of homogeneousreal entities, butnamesof various 
ititious entities, for which no common genus is to be found : and which 
terefore, without a vast and roundabout chain of investigation, can never 
3 brought under any exhaustive plan of arrangement, but must be picked 
p here and there as they happen to occur. 

* It may be thought, that in a certain degree of health, this negative 
;count of the matter hardly comes up to the case. In a certain degree of 

46 Of Circumstances influencing Sensibility. [CHAV. 

general sensibility, a man who is under the pressure of any 
bodily indisposition, or, as the phrase is, is in an ill state of N 
health, is less sensible to the influence of any pleasurable cause, 
and more so to that of any afflictive one, than if he were well, i 

2. strength. VIII. 2. The circumstance of strength, though in point of 

causality closely connected with that of health, is perfectly dis- : 
tinguishable from it. The same man will indeed generally be : 
stronger in a good state of health than in a bad one. But one \ 
man, even in a bad state of health,may be stronger than another 
even in a good one. Weakness is a common concomitant of \ 
disease : but in consequence of his radical frame of body, a man 
may be weak all his life long, without experiencing any disease. 
Health, as we have observed, is principally a negative circum- ; 
stance : strength a positive one. The degree of a man s strength ! 
can be measured with tolerable accuracy 1 . 

3. Hardi- IX. 3. Hardiness is a circumstance which, though closely con-i 

nected with that of strength, is distinguishable from it. Hardi 
ness is the absence of irritability. Irritability respects either 
pain, resulting from the action of mechanical causes ; or disease, 
resulting from the action of causes purely physiological. Irrita 
bility, in the former sense, is the disposition to undergo a greater 

health, there is often such a kind of feeling diffused over the whole frame, 
such a comfortable feel, or flow of spirits, as it is called, as may with pro 
priety come under the head of positive pleasure. But without experiencing 
any such pleasurable feeling, if a man experience no painful one, he maybe 
well enough said to be in health. 

Measure of x The most accurate measure that can be given of aman s strength, seems 
wefgiua man * be thatwhich is taken from the weight or number of pounds and ounces 
can lift. he can lift with his hands in a given attitude. This indeed relates imme 
diately only to his arms : but these are the organs of strength which art 
most employed ; of which the strength corresponds with most exactness t< 
the general state of the body with regard to strength ; and in which thi 
quantum of strength is easiest measured. Strength may accordingly bu 
distinguished into general and particular. 

weakness, Weakness is a negative term, and imports the absence of strength. 1 1 

what is, besides, a relative term, and accordingly imports the absence of such 1 1 

quantity of strength as makes the share, possessed by the person in ques 
tion, less than that of some person he is compared to. Weakness, when i 
is at such a degree as to make it painful for a man to perform the motion 
necessary to the going through the ordinary functions of life, such as to ge -, 
up, to walk, to dress one s self, and so forth, brings the circumstance c 
health into question, and puts a man into that sort of condition in whic I 
he is said to be in ill health. 

I.] Of Circumstances influencing Sensibility. 47 

Jr less degree of pain upon the application of a mechanical 
.ause ; such as are most of those applications by which simple 
Ifflictive punishments are inflicted, as whipping, beating, and the 
|ke. In the latter sense, it is the disposition to contract disease 
fith greater or less facility, upon the application of any instru- 
lient acting on the body by its physiological properties ; as in 
Lie case of fevers, or of colds, or other inflammatory diseases, 
}roduced by the application of damp air : or to experience im- 
liediate uneasiness, as in the case of relaxation or chilliness 
(reduced by an over or under proportion of the matter of heat. 
! Hardiness, even in the sense in which it isopposedto the action Difference 
If mechanical causes, is distinguishable from strength. The ex- sSSS 
hrnal indications of strength are the abundance and firmness of SJss. har 
lie muscular fibres : those of hardiness, in this sense, are the 
jrmness of the muscular fibres, and the callosity of the skin. 
Jbrength is more peculiarly the gift of nature : hardiness, of 
I lucation. Of two persons who have had, the one the education 
|: a gentleman, the other, that of a common sailor, the first 
:.ay be the stronger, at the same time that the other is the 

X. 4. By bodily imperfection may be understood that con- 4. Bodily 
don which a person is in, who either stands distinguished by tion? rfe 

j ly remarkable deformity, or wants any of those parts or facul- 
3S, which the ordinary run of persons of the same sex and age 
e furnished with : who, for instance, has a hare-lip, is deaf, or 
is lost a hand. This circumstance, like that of ill-health, tends 
general to diminish more or less the effect of any pleasurable 
rcumstance, and to increase that of any afflictive one. The 
feet of this circumstance, however, admits of great variety : 
asmuch as there are a great variety of ways in which a man 

! ay suffer in his personal appearance, and in his bodily organs 
id faculties : all whict differences will be taken notice of in 
.eir proper places 1 . 

XI. 5. So much for circumstances belonging to the condition 5. Quantity 

, -i i T , , . , and quality 

tne body : we come now to those which concern the con-ofknow- 
1 See B. I. Tit. [Irrep. corp. Injuries]. 

48 Of Circumstances influencing Sensibility. [CHAP. 

dition of the mind : the use of mentioning these will be seen 
hereafter. In the first place may be reckoned the quantity and \ 
quality of the knowledge the person in question happens to 
possess : that is, of the ideas which he has actually in store, , 
ready upon occasion to call to mind : meaning such ideas as are ! 
in some way or other of an interesting nature : that is, of a i 
nature in some way or other to influence his happiness, or that : 
of other men. When these ideas are many, and of importance, 1 
a man is said to be a man of knowledge ; when few, or not of I : 
importance, ignorant. 

6. strength XII. 6. By strength of intellectual powers may be understood - 
tuffirowers. the degree of facility which a man experiences in his endeavours : 

to call to mind as well such ideas as have been already aggre- 
gated to his stock of knowledge, as any others, which, upon any L 
occasion that may happen, he may conceive a desire to place ; 
there. It seems to be on some such occasion as this that the c 
words parts and talents are commonly employed. To this head 
may be referred the several qualities of readiness of apprehen- : 
sion, accuracy and tenacity of memory, strength of attention, 
clearness of discernment, amplitude of comprehension, vividity 
and rapidity of imagination. Strength of intellectual powers, im 
general, seems to correspond pretty exactly to general strength! 
of body : as any of these qualities in particular does to particular 

7. Firmness XIII. 7. Firmness of mind on the one hand, and irritability 
imid * on the other, regard the proportion between the degrees of effi 
cacy with which a man is acted upon by an exciting cause, of 
which the value lies chiefly in magnitude, and one of which 
the value lies chiefly in propinquity 1 . A man may be said 
to be of a firm mind, when small pleasures or pains, which are 
present or near, do not affect him, in a greater proportion to 
their value, than greater pleasures or pains, which are uncertain 
or remote 2 ; of an irritable mind, when the contrary is the 

1 See chap. iv. [Value]. 

2 When, for instance, having been determined, by the prospect of some 


i.] Of Circumstances influencing Sensibility. 49 

XIV. 8. Steadiness regards the time during which a given 8. steadi- 
xciting cause of a given value continues to affect a man in 
early the same manner and degree as at first, no assignable 
xternal event or change of circumstances intervening to make 

n alteration in its force a . 

XV. 9. By the bent of a man s inclinations may be under- ?. Bent of 
:ood the propensity he has to expect pleasure or pain from cer- m< 

dn objects, rather than from others. A man s inclinations may 
e said to have such or such a bent, when, amongst the several 
>rts of objects which afford pleasure in some degree to all men, 
e is apt to expect more pleasure from one particular sort, than 
om another particular sort, or more from any given particular 
>rt, than another man would expect from that sort ; or when, 
nongst the several sorts of objects, which to one man afford 
teasure, whilst to another they afford none, he is apt to expect, 
i: not to expect, pleasure from an object of such or such a sort : 
also with regard to pains. This circumstance, though inti- 
.ately connected -with that of the bias of a man s sensibility, is 
!5t undis tinguishable from it. The quantity of pleasure or pain, 
:hich on any given occasion a man may experience from an 
oplication of any sort, may be greatly influenced by the ex- 
ijctations he has been used to entertain of pleasure or pain from 
lat quarter ; but it will not be absolutely determined by them : 
>r pleasure or pain may come upon him from a quarter from 
hich he was not accustomed to expect it. 

XVI. 10. The circumstances of moral, religious, sympathetic, 10. Moral 
id antipathetic sensibility, when closely considered, will appear sei 

be included in some sort under that of bent of inclination. On 

sonvenience, not to disclose a fact, although he should be put to the rack, 
perseveres in such resolution after the rack is brought into his presence, 
.d even applied to him. 

The facility with which children grow tired of their play-things, and 
row them away, is an instance of unsteadiness : the perseverance with 
lich a merchant applies himself to his traffic, or an author to his book, 
%y be taken for an instance of the contrary. It is difficult to judge of the 
lantity of pleasure or pain in these cases, but from the effects which it 
oduces in the character of a motive : and even then it is difficult to pro- 
Unce, whether the change of conduct happens by the extinction of the old 
^asure or pain, or by the intervention of a new one. 


50 Of Circumstances influencing Sensibility. [CHAP. 

account of their particular importance they may, however, be 
worth mentioning apart. A man s moral sensibility may be said 
to be strong, when the pains and pleasures of the moral sanc 
tion 1 show greater in his eyes, in comparison with other pleasures 
and pains (and consequently exert a stronger influence) than in 
the eyes of the persons he is compared with ; in other words, 
when he is acted on with more than ordinary efficacy by the 
sense of honour : it may be said to be weak, when the contrary 
is the case. 

11. Moral XVII. ii. Moral sensibility seems to regard the average effect 

or influence of the pains and pleasures of the moral sanction, 
upon all sorts of occasions to which it is applicable, or happens 
to be applied. It regards the average force or quantity of the 
impulses the mind receives from that source during a given 
period. Moral bias regards the particular acts on which, upon 
so many particular occasions, the force of that sanction is looked 
upon as attaching. It regards the quality or direction of those 
impulses. It admits of as many varieties, therefore, as there are 
dictates which the moral sanction may be conceived to issue 
forth. A man may be said to have such or such a moral bias, 
or to have a moral bias in favour of such or such an action, 
when he looks upon it as being of the number of those of which 
the performance is dictated by the moral sanction. 

12. Religious XVIII. 12. What has been said with regard to moral sensi 

bility, may be applied, mutatis mutandis, to religious. 

13. Religious XIX. 13. What has been said with regard to moral biases, 


may also be applied, mutatis mutandis, to religious biases. 

14 sympa- XX. 14. By sympathetic sensibility is to be understood the r 

thetic sen- ., ,, , , . , . " 

sibiiity. propensity that a man has to derive pleasure from the happi- I 
ness, and pain from the unhappiness, of other sensitive beings. \ 
It is the stronger, the greater the ratio of the pleasure or pain 
he feels on their account is to that of the pleasure or pain which 
(according to what appears to him) they feel for themselves. 
15. sympa- XXI. 15. Sympathetic bias regards the description of the< 
parties who are the objects of a man s sympathy : and of the 
1 See ch. v. [Pleasures and Pains]. 

vi.] Of Circumstances influencing Sensibility. 51 

acts or other circumstances of or belonging to those persons, 
by which the sympathy is excited. These parties may be, 
I. Certain individuals. 2. Any subordinate class of individuals. 
3. The whole nation. 4. Human kind in general. 5. The 
whole sensitive creation. According as these objects of sym 
pathy are more numerous, the affection, by which the man is 
biased, may be said to be the more enlarged. 

XXII. 16, 17. Antipathetic sensibility and antipathetic biases 16, 17. An- 
are just the reverse of sympathetic sensibility and sympathetic seSfnty 
biases. By antipathetic sensibility is to be understood the pro- and biases< 
pensity that a man has to derive pain from the happiness, and 
pleasure from the unhappiness, of other sensitive beings, 

XXIII. 18. The circumstance of insanity of mind corresponds is. insanity. 
to that of bodily imperfection. It admits, however, of much less 
variety, inasmuch as the soul is (for aught we can perceive) one 
indivisible thing, not distinguishable, like the body, into parts. 

What lesser degrees of imperfection the mind may be susceptible 
of, seem to be comprisable under the already-mentioned heads 
of ignorance, weakness of mind, irritability, or unsteadiness ; or 
under such others as are reducible to them. Those which are 
here in view are those extraordinary species and degrees of 

* mental imperfection, which, wherever they take place, are as 
! conspicuous and as unquestionable as lameness or blindness 

in the body : operating partly, it should seem, by inducing an 
extraordinary degree of the imperfections above mentioned, 
partly by giving an extraordinary and preposterous bent to 
the inclinations. 

XXIV. 19. Under the head of a man s habitual occupations, 19. Habi- 
are to be understood, on this occasion, as well those which he pat!ons CU " 

pursues for the sake of profit, as those which he pursues for the 
sake of present pleasure. The consideration of the profit itself 
belongs to the head of a man s pecuniary circumstances. It is 
evident,that if by any means a punishment,or any other exciting 
cause, has the effect of putting it out of his power to continue in 
the pursuit of any such occupation, it must on that account be 
so much the more distressing. A man s habitual occupations, 

E 2 

53 Of Circumstances influencing Sensibility. [CHAP. 

though intimately connected in point of causality with the bent 
of his inclinations, are not to be looked upon as precisely the 
same circumstance. An amusement, or channel of profit, may be 
the object of a man s inclinations, which has never been the 
subject of his habitual occupations : for it may be, that though 
he wished to betake himself to it, he never did, it not being in 
his power : a circumstance which may make a good deal of 
difference in the effect of any incident by which he happens 
to be debarred from it. 

n?aiycir- XXV. 20. Under the head of pecuniary circumstances, I 
cumstances. me an to bring to view the proportion which a man s means 
bear to his wants : the sum total of his means of every kind, 
to the sum total of his wants of every kind. A man s means 
depend upon three circumstances : I. His property. 2. The 
profit of his labour. 3. His connexions in the way of support. 
His wants seem to depend upon four circumstances. I. His 
habits of expense. 2. His connexions in the way of burthen. 
3. Any present casual demand he may have. 4. The strength 
of his expectation. By a man s property is to be under 
stood, whatever he has in store independent of his labour. 
By the profit of his labour is to be understood the growing 
profit. As to labour, it may be either of the body princi 
pally, or of the mind principally, or of both indifferently : nor 
does it matter in what manner, nor on what subject, it be ( 
applied, so it produce a profit. By a man s connexions in 
the way of support, are to be understood the pecuniary assist- ; 
ances, of whatever kind, which he is in a way of receiving 
from any persons who, on whatever account, and in whatever*! 
proportion, he has reason to expect should contribute gratis to | 
his maintenance : such as his parents, patrons, and relations. It f 
seems manifest, that a man can have no other means than these. 
What he uses, he must have either of his own, or from other 
people : if from other people, either gratis or for a price. As 
to habits of expense, it is well known, that a man s desires are( 
governed in a great degree by his habits. Many are the cases inf 
which desire (and consequently the pain, of privation connected ; 

vi.] Of Circumstances influencing Sensibility. 53 

with it 1 ) would not even subsist at all, but for previous enjoy 
ment. By a man s connexions in the way of burthen, are to be 
understood whatever expense he has reason to look upon him 
self as bound to be at in the support of those who by law, or the 
customs of the world, are warranted in looking up to him for 
assistance ; such as children, poor relations, superannuated ser 
vants, and any other dependents whatsoever. As to present 
casual demand, it is manifest, that there are occasions on which 
a given sum will be worth infinitely more to a man than the 
same sum would at another time : where, for example, in a case 
of extremity, a man stands in need of extraordinary medical 
assistance : or wants money to carry on a law-suit, on which 
his all depends : or has got a livelihood waiting for him in a 
distant country, and wants money for the charges of conveyance. 
In such cases, any piece of good or ill fortune, in the pecuniary 
way, might have a very different effect from what it would have 
at any other time. With regard to strength of expectation ; 
when one man expects to gain or to keep a thing which another 
does not, it is plain the circumstance of not having it will affect 
the former very differently from the latter ; who, indeed, com 
monly will not be affected by it at all. 

XXVI. 21. Under the head of a man s connexions in the 21. Con- 
way of sympathy, I would bring to viewthe number and descrip- the way of 
tion of the persons in whose welfare he takes such a concern, as sympa * hy - 
that the idea of their happiness should be productive of pleasure, 
and that of their unhappiness of pain to him : for instance, a 
man s wife, his children, his parents, his near relations, and in 
timate friends. This class of persons, it is obvious, will for the 
most part include the two classes by which his pecuniary circum 
stances are affected : those, to wit, from whose means he may 
expect support, and those whose wants operate on him as a 
burthen. But it is obvious, that besides these, it may very well 
include others, with whom he has no such pecuniary connexion : 
arid even with regard to these, it is evident that the pecuniary 
dependence, and the union of affections, are circumstances per- 
1 See ch. v. [Pleasures and Pains]. 

54 Qf Circumstances influencing Sensibility. [CHAP. 

fectly distinguishable. Accordingly, the connexions here in 
question, independently of any influence they may have on a 
man s pecuniary circumstances, have an influence on the effect 
of any exciting causes whatsoever. The tendency of them is to 
increase a man s general sensibility ; to increase, on the one 
hand, the pleasure produced by all pleasurable causes ; on the 
other, the pain produced by all afflictive ones. When any plea 
surable incident happens to a man, he naturally, in the first 
moment, thinks of the pleasure it will afford immediately to 
himself : presently afterwards, however (except in a few cases, 
which is not worth while here to insist on) he begins to think 
of the pleasure which his friends will feel upon their coming to 
know of it : and this secondary pleasure is commonly no mean 
addition to the primary one. First comes the self -regarding 
pleasure : then comes the idea of the pleasure of sympathy, 
which you suppose that pleasure of yours will give birth to in 
the bosom of your friend : and this idea excites again in yours 
a new pleasure of sympathy, grounded upon his. The first plea 
sure issuing from your own bosom, as it were from a radiant 
point, illuminates the bosom of your friend : reverberated from 
thence, it is reflected with augmented warmth to the point from 
whence it first proceeded : and so it is with pains \ 

Nor does this effect depend wholly upon affection. Among 
near relations, although there should be no kindness, the plea 
sures and pains of the moral sanction are quickly propagated by 
a peculiar kind of sympathy : no article, either of honour or 
disgrace, can well fall upon a man, without extending to a cer 
tain distance within the circle of his family. What reflects 
honour upon the father, reflects honour upon the son : what re 
flects disgrace, disgrace. The cause of this singular and seem 
ingly unreasonable circumstance (that is, its analogy to the rest 

1 This is one reason why legislators in general like better to have married 
people to deal with than single ; and people that have children than such 
as are childless. It is manifest that the stronger and more numerous a* 
man s connexions in the way of sympathy are, the stronger is the hold 
which the law has upon him. A wife and children are so many pledges a , j 
man gives to the world for his good behaviour. 

vi.] Of Circumstances influencing Sensibility. 55 

of the phenomena of the human mind,) belongs not to the pre 
sent purpose. It is sufficient if the effect be beyond dispute. 

XXVII. 22. Of a man s connexions in the way of antipathy, 22. Con- 
there needs not any thing very particular to be observed. Hap- the way of 
pily there is no primaeval and constant source of antipathy in an 
human nature, as there is of sympathy. There are no permanent 

sets of persons who are naturally and of course the objects of an 
tipathy to a man, as there are who are the objects of the con 
trary affection. Sources, however, but too many, of antipathy, 
are apt to spring up upon various occasions during the course of 
a man s life : and whenever they do, this circumstance may have 
a very considerable influence on the effects of various exciting 
causes. As on the one hand, a punishment, for instance, which 
tends to separate a man from those with whom he is connected 
in the way of sympathy, so on the other hand, one which tends 
to force him into the company of those with whom he is con 
nected in the way of antipathy, will, on that account, be so 
much the more distressing. It is to be observed, that sympathy 
itself multiplies the sources of antipathy. Sympathy for your 
friend gives birth to antipathy on your part against all those 
who are objects of antipathy, as well as to sympathy for those 
who are objects of sympathy to him. In the same manner does 
antipathy multiply the sources of sympathy; though commonly 
perhaps with rather a less degree of efficacy. Antipathy against 
your enemy is apt to give birth to sympathy on your part 
towards those who are objects of antipathy, as well as to an 
tipathy against those who are objects of sympathy, to him. 

XXVIII. 23. Thus much for the circumstances by which the 23. Radical 
effect of any exciting cause may be influenced, when applied body? 
upon any given occasion, at any given period. But besides 

these supervening incidents, there are other circumstances re 
lative to a man, that may have their influence, and which are 
co-eval to his birth. In the first place, it seems to be universally 
agreed, that in the original frame or texture of every man s 
body, there is a something which, independently of all subse 
quently intervening circumstances, renders him liable to be 

56 Of Circumstances influencing Sensibility. [CHA.P. 

affected by causes producing bodily pleasure or pain, in a 
manner different from that in which another man would be 
affected by the same causes. To the catalogue of circumstances 
influencing a man s sensibility, we may therefore add his ori 
ginal or radical frame, texture, constitution, or temperament 
of body. 

24. Radical XXIX. 24. In the next place, it seems to be pretty well 
mind. agreed, that there is something also in the original frame or 
texture of every man s mind, which, independently of all ex 
terior and subsequently intervening circumstances, and even of 
his radical frame of body, makes him liable to be differently 
affected by the same exciting causes, from what another man 
would be. To the catalogue of circumstances influencing a 
man s sensibility, we may therefore further add his original or 
radical frame, texture, constitution or temperament of mind \ 
Thisdistinct XXX. It seems pretty certain, all this while, that a man s 

from the cir- . . . r i 

cumstance sensibility to causes producing pleasure or pain, even 01 mind, 

of frame of f. . . , , 

body ; may depend in a considerable degree upon his original and ac 
quired frame of body. But we have no reason to think that it 
can depend altogether upon that frame : since, on the one hand, 
we see persons whose frame of body is as much alike as can be 
conceived, differing very considerably in respect of their mental 
frame : and, on the other hand, persons whose frame of mind is 
as much alike as can be conceived, differing very conspicuously 
in regard to their bodily frame 2 . 

idiosyncrasy, l The characteristic circumstances whereby one man s frame of body or 
mind, considered at any given period, stands distinguished from that of 
another, have been comprised by metaphysicians and physiologists under 
the name idiosyncrasy, from i&o?, peculiar, and awnpaais, composition. 
whether the 2 Those who maintain, that the mind and the body are one substance, 
riafoH mate ma y here kj ec t> that upon that supposition the distinction between frame 
rial make s" 6 " of mind and frame of body is but nominal, and that accordingly there is no 
difference. guch thing as ft f rame o f m i n( j distinct from the frame of body. But grant 
ing, for argument-sake, the antecedent, we may dispute the consequence. 
For if the mind be but a part of the body, it is at any rate of a nature very 
different from the other parts of the body. 

A man s frame of body cannot in any part of it undergo any considerable 
alteration without its being immediately indicated by phenomena discern 
ible by the senses. A man s frame of mind may undergo very considerable 
alterations, his frame of body remaining the same to all appearance ; that 

vi.] Of Circumstances influencing Sensibility. 57 

XXXI. It seems indisputable also, that the different sets of - 
external occurrences that may befall a man in the course of his 
life, will make great differences in the subsequent texture of his 
mind at any given period : yet still those differences are not 
solely to be attributed to such occurrences. Equally far from 
the truth seems that opinion to be (if any such be maintained) 
which attributes all to nature, and that which attributes all to 
education. The two circumstances will therefore still remain 
distinct, as well from one another, as from all others. 

XXXII. Distinct however as they are, it is manifest, that at Yet the re- 

. . . . ,.. suit of them 

no period in the active part of a man s life can they either of is not sepa- 
them make their appearance by themselves. All they do is to cernibie. 
constitute the latent ground- work which the other supervening 
circumstances have to work upon: and whatever influence those 
original principles may have, is so changed and modified, and 
covered over, as it were, by those other circumstances, as never 
to be separately discernible. The effects of the one influence are 
indistinguishably blended with those of the other. 

XXXIII. The emotions of the body are received, and with Frame of 
reason, as probable indications of the temperature of the mind, cates/but 
But they are far enough from conclusive. A man may exhibit, 

for instance, the exterior appearances of grief, without really m 
grieving at all, or at least in any thing near the proportion in 
which he appears to grieve. Oliver Cromwell, whose conduct 
indicated a heart more than ordinarily callous, was as remark 
ably profuse in tears 1 . Many men can command the external ap 
pearances of sensibility with very little real feeling 2 . The female 

is, for any thing that is indicated to the contrary by phenomena cognizable 
to the senses : meaning those of other men. 

1 Hume s Hist. 

1 The quantity of the sort of pain, which is called grief, is indeed hardly 
to be measured by any external indications. It is neither to be measured, 
for instance, by the quantity of the tears, nor by the number of moments 
spent in crying. Indications rather less equivocal may, perhaps, be afforded 
by the pulse. A man has not the motions of his heart at command as he 
i has those of the muscles of his face. But the particular significancy of 
these indications is still very uncertain. All they can express is, that the 
man is affected ; they cannot express in what manner, nor from what cause. 
To an affection resulting in reality from such or such a cause, he may give 

58 Of Circumstances influencing Sensibility. [CHAP. 

sex commonly with greater facility than the male : hence the 
proverbial expression of a woman s tears. To have this kind of 
command over one s self, was the characteristic excellence of 
the orator of ancient times, and is still that of the player in 
our own. 

Secondary XXXIV. The remaining circumstances may, with reference to 
circum. those already mentioned, be termed secondary influencing cir- 

stances. J 

cumstances. These have an influence, it is true, on the quantum 
or bias of a man s sensibility, but it is only by means of the 
other primary ones. The manner in which these two sets of 
circumstances are concerned, is such that the primary ones do 
the business, while the secondary ones lie most open to ob 
servation. The secondary ones, therefore, are those which are 
most heard of ; on which account it will be necessary to tak< 
notice of them : at the same time that it is only by means of th( 
primary ones that their influence can be explained ; whereas tht 
influence of the primary ones will be apparent enough, withoui 
any mention of the secondary ones. 
25. Sex. XXXV. 25. Among such of the primitive modifications o: 

the corporeal frame as may appear to influence the quantum anc 
bias of sensibility, the most obvious and conspicuous are those 
which constitute the sex. In point of quantity, the sensibility 
of the female sex appears in general to be greater than that o; 
the male. The health of the female is more delicate than thai 
of the male : in point of strength and hardiness of body, in point 
of quantity and quality of knowledge, in point of strength oJ 
intellectual powers, and firmness of mind, she is commonly in- 

an artificial colouring, and attribute it to such or such another cause. To 
an affection directed in reality to such or such a person as its object, he 
may give an artificial bias, and represent it as if directed to such or such 
another object. Tears of rage he may attribute to contrition. The concern 
he feels at the thoughts of a punishment that awaits him, he may impute 
to a sympathetic concern for the mischief produced by his offence. 

A very tolerable judgment, however, may commonly be formed by a dis 
cerning mind, upon laying all the external indications exhibited by a man. I 
together, and at the same time comparing them with his actions. 

A remarkable instance of the power of the will, over the external indica- ^ 
tions of sensibility, is to be found in Tacitus s story of the Eoman soldier, 
who raised a mutiny in the camp, pretending to have lost a brother by tht 
lawless cruelty of the General. The truth was, he never had had a brother 

vi.] Of Circumstances influencing Sensibility. 59 

ferior : moral, religious, sympathetic, and antipathetic sensibility 
are commonly stronger in her than in the male. The quality of 
her knowledge, and the bent of her inclinations, are commonly 
in many respects different. Her moral biases are also, in certain 
respects, remarkably different : chastity, modesty, and delicacy, 
for instance, are prized more than courage in a woman: courage, 
more than any of those qualities, in a man. The religious 
biases in the two sexes are not apt to be remarkably different ; 
except that the female is rather more inclined than the male to 
superstition ; that is, to observances not dictated by the prin 
ciple of utility ; a difference that may be pretty well accounted 
for by some of the before-mentioned circumstances. Her sym 
pathetic biases are in many respects different ; for her own off 
spring all their lives long, and for children in general while 
young, her affection is commonly stronger than that of the 
male. Her affections are apt to be less enlarged : seldom ex 
panding themselves so much as to take in the welfare of her 
country in general, much less that of mankind, or the whole 
sensitive creation : seldom embracing any extensive class or di 
vision, even of her own countrymen, unless it be in virtue of 
her sympathy for some particular individuals that belong to it. 
In general, her antipathetic, as well as sympathetic biases, are apt 
to be less conformable to the principle of utility than those of 
the male ; owing chiefly to some deficiency in point of know 
ledge, discernment, and comprehension. Her habitual occupa 
tions of the amusing kind are apt to be in many respects dif 
ferent from those of the male. With regard to her connexions 
in the way of sympathy, there can be no difference. In point 
of pecuniary circumstances, according to the customs of perhaps 
all countries, she is in general less independent. 

XXXVI. 26. Age is of course divided into divers periods, of 26. Age. 
which the number and limits are by no means uniformly ascer 
tained. One might distinguish it, for the present purpose, into, 
1 i. Infancy. 2. Adolescence. 3. Youth. 4. Maturity. 5. De- 
| cline. 6. Decrepitude. It were lost time to stop on the present 
occasion to examine it at each period, and to observe the indi- 

60 Of Circumstances influencing Sensibility. [CHAP. 

cations it gives, with respect to the several primary circum 
stances just reviewed. Infancy and decrepitude are commonly 
inferior to the other periods, in point of health, strength, hardi 
ness, and so forth. In infancy, on the part of the female, the 
imperfections of that sex are enhanced : on the part of the male, 
imperfections take place mostly similar in quality,but greater in 
quantity, to those attending the states of adolescence, youth, and 
maturity in the female. In the stage of decrepitude both sexes 
relapse into many of the imperfections of infancy. The generality 
of these observations may easily be corrected upon a particular 

27. Rank. XXXVII. 27. Station, or rank in life, is a circumstance, 
that, among a civilized people, will commonly undergo a multi 
plicity of variations. Cceteris paribus, the quantum of sensibility 
appears to be greater in the higher ranks of men than in the 
lower. The primary circumstances in respect of which this 
secondary circumstance is apt to induce or indicate a difference, 
seem principally to be as follows: i. Quantity and Quality of 
knowledge. 2. Strength of mind. 3. Bent of inclination. 4. 
Moral sensibility. 5. Moral biases. 6. Religious sensibility. 
7. Religious biases. 8. Sympathetic sensibility. 9. Sympathetic 
biases. 10. Antipathetic sensibility, n. Antipathetic biases. 
12. Habitual occupations. 13. Nature and productiveness of 
a man s means of livelihood. 14. Connexions importing profit. 
15. Habit of expense. 16. Connexions importing burthen. 
A man of a certain rank will frequently have a number of de 
pendents besides those whose dependencyis the result of natural 
relationship. As to health, strength, and hardiness, if rank has^ 
any influence on these circumstances, it is but in a remote way, 
chiefly by the influence it may have on its habitual occupations, i 

28^Educa- XXXVIII. 28. The influence of education is still more ex 
tensive. Education stands upon a footing somewhat different t 
from that of the circumstances of age, sex, and rank. These i 
words, though the influence of the circumstances they respec- <J 
tively denote exerts itself principally, if not entirely, through 
the medium of certain of the primary circumstances before 

vi.] Of Circumstances influencing Sensibility. 61 

mentioned, present, however, each of them a circumstance which 
has a separate existence of itself. This is not the case with the 
word education : which means nothing any farther than as it 
serves to call up to view some one or more of those primary 
circumstances. Education may be distinguished into phy 
sical and mental ; the education of the body and that of 
the mind : mental, again, into intellectual and moral ; the 
culture of the understanding, and the culture of the affec 
tions. The education a man receives, is given to him partly 
by others, partly by himself. By education then nothing more 
can be expressed than the condition a man is in in respect of 
those primary circumstances, as resulting partly from the 
management and contrivance of others, principally of those who 
in the early periods of his life have had dominion over him, 
partly from his own. To the physical part of his education, 
belong the circumstances of health, strength, and hardiness: 
sometimes, by accident, that of bodily imperfection ; as where 
by intemperance or negligence an irreparable mischief happens 
to his person. To the intellectual part, those of quantity and 
quality of knowledge, and in some measure perhaps those of 
firmness of mind and steadiness. To the moral part, the bent 
of his inclinations, the quantity and quality of his moral, re 
ligious, sympathetic, and antipathetic sensibility : to all three 
branches indiscriminately, but under the superior control of 
external occurrences, his habitual recreations, his property, his 
means of livelihood, his connexions in the way of profit and of 
burthen, and his habits of expense. With respect indeed to all 
these points, the influence of education is modified, in a manner 
more or less apparent, by that of exterior occurrences ; and in a 

I manner scarcely at all apparent, and altogether out of the reach 

, of calculation, by the original texture and constitution as well 

.( of his body as of his mind. 

, XXXIX. 29. Among the external circumstances by which 29. ciimato. 

. the influence of education is modified, the principal are those . 

j which come under the head of climate. This circumstance 

, places itself in front, and demands a separate denomination, not 

62 Of Circumstances influencing Sensibility. [CHAP. 

merely on account of the magnitude of its influence, but also on 
account of its being conspicuous to every body, and of its apply 
ing indiscriminately to great numbers at a time. This circum 
stance depends for its essence upon the situation of that part of 
the earth which is in question, with respect to the course taken 
by the whole planet in its revolution round the sun: but for its 
influence it depends upon the condition of the bodies which com 
pose the earth s surface at that part, principally upon the quan 
tities of sensible heat at different periods, and upon the density, 
and purity, and dryness or moisture of the circumambient air. 
Of the so often mentioned primary circumstances, there are few 
of which the production is not influenced by this secondary one; 
partly by its manifest effects upon the body ; partly by its less 
perceptible effects upon the mind. In hot climates men s health 
is apt to be more precarious than in cold : their strength and 
hardiness less : their vigour, firmness, and steadiness of mind 
less : and thence indirectly their quantity of knowledge : the 
bent of their inclinations different : most remarkably so in re- 1 
spect of their superior propensity to sexual enjoyments, and in 
respect of the earliness of the period at which that propensity 
begins to manifest itself : their sensibilities of all kinds more 
intense : their habitual occupations savouring more of slothft 
than of activity : their radical frame of body less strong, pro 
bably, and less hardy: their radical frame of mind less vigorous,! 
less firm, less steady. I 

so. Lineage. XL. 30. Another article in the catalogue of secondary cir 
cumstances, is that of race or lineage : the national race oij, 
lineage a man issues from. This circumstance, independently o:^ 
that of climate, will commonly make some difference in point o:l 
radical frame of mind and body. A man of negro race, born ir; 
France or England, is a very different being, in many respects 4 
from a man of French or English race. A man of Spanish racef 
born in Mexico or Peru, is at the hour of his birth a differen 
sort of being, in many respects, from a man of the original 
Mexican or Peruvian race. This circumstance, as far as it i 
distinct from climate, rank, and education, and from the tw 

vi.] Of Circumstances influencing Sensibility. 63 

just mentioned, operates chiefly through the medium of moral, 
religious, sympathetic, and antipathetic biases. 

XLI. 31. The last circumstance but one, is that of govern- si. Govern- 
ment : the government a man lives under at the time in ques- m 
tion ; or rather that under which he has been accustomed most 
to live. This circumstance operates principally through the 
medium of education : the magistrate operating in the character 
of a tutor upon all the members of the state, by the direction he 
gives to their hopes and to their fears. Indeed under a solicitous 
and attentive government, the ordinary preceptor, nay even the 
parent himself, is but a deputy, as it were, to the magistrate : 
whose controlling influence, different in this respect from that of 
the ordinary preceptor, dwells with a man to his life s end. The 
effects of the peculiar power of the magistrate are seen more 
particularly in the influence it exerts over the quantum and bias 
of men s moral, religious, sympathetic, and antipathetic sensi 
bilities. Under a well-constituted, or even under a well-admi 
nistered though ill-constituted government, men s moral sensi 
bility is commonly stronger, and their moral biases more con 
formable to the dictates of utility : their religious sensibility 
frequently weaker, but their religious biases less unconformable 
to the dictates of utility : their sympathetic affections more 
enlarged, directed to the magistrate more than to small parties 
or to individuals, and more to the whole community than to 
either : their antipathetic sensibilities less violent, as being 
more obsequious to the influence of well-directed moral biases, 
and less apt to be excited by that of ill-directed religious ones : 
their antipathetic biases more conf ormabl e to well-directed moral 
ones, more apt (in proportion) to be grounded on enlarged and 
sympathetic than on narrow and self-regarding affections, and 
accordingly, upon the whole, more conformable to the dictates 
of utility. 

XLII. 32. The last circumstance is that of religious profes- 32. Religious 
sion : the religious profession a man is of : the religious frater- pro1 
nity of which he is a member. This circumstance operates 
principally through the medium of religious sensibility and reli- 

Use of the 

64 Of Circumstances influencing Sensibility. [CHAP. 

gious biases. It operates, however, as an indication more or 
less conclusive, with respect to several other circumstances. 
With respect to some, scarcely but through the medium of the 
two just mentioned: this is the case with regard to the quantum 
and bias of a man s moral, sympathetic, and antipathetic sen 
sibility : perhaps in some cases with regard to quantity and 
quality of knowledge, strength of intellectual powers, and bent 
of inclination. With respect to others, it may operate immedi 
ately of itself : this seems to be the case with regard to a man s 
habitual occupations, pecuniary circumstances, and connexions 
in the way of sympathy and antipathy. A man who pays very 
little inward regard to the dictates of the religion which he finds 
it necessary to profess, may find it difficult to avoid joining in 
the ceremonies of it, and bearing a part in the pecuniary bur 
thens it imposes 1 . By the force of habit and example he may 
even be led to entertain a partiality for persons of the same pro-i 
fession, and a proportionable antipathy against those of a rival! 
one. In particular, the antipathy against persons of different! 
persuasions is one of the last points of religion which men part, 
with. Lastly, it is obvious, that the religious profession a manl 
is of cannot but have a considerable influence on his education^] 
But, considering the import of the term education, to say this is^ 
perhaps no more than saying in other words what has been said 

XLIII. These circumstances, all or many of them, will needfc 
to be attended to as often as upon any occasion any account if) 
taken of any quantity of pain or pleasure, as resulting from an}p 
cause. Has any person sustained an injury ? they will need t<t, 
be considered in estimating the mischief of the offence. Is satis 
faction to be made to him? they will need to be attended to ii 

1 The ways in which a religion may lessen a man s means, or augment 
his wants, are various. Sometimes it will prevent him from making I 
profit of his money : sometimes from setting his hand to labour. Sometime 
it will oblige him to buy dearer food instead of cheaper : sometimes to pui 
chase useless labour: sometimes to pay men for not labouring: sometime 
to purchase trinkets, on which imagination alone has set a value : some 
times to purchase exemptions from punishment, or titles to felicity in th 
world to come. 

vi.] Of Circumstances influencing Sensibility. 65 

adjusting the quantum of that satisfaction. Is the injurer to be 
punished ? they will need to be attended to in estimating the 
force of the impression that will be made on him by any given 
XLIV. It is to be observed, that though they seem all of HOW far the 

., . , . , circum- 

them, on some account or other, to merit a place in the cata- stances in 
logue, they are not all of equal use in practice. Different articles betaken in" 
among them are applicable to different exciting causes. Of those 
that may influence the effect of the same exciting cause, some 
apply indiscriminately to whole classes of persons together ; 
1 being applicable to all, without any remarkable difference in 
degree : these may be directly and pretty fully provided for by 
the legislator. This is the case, for instance, with the primary 
circumstances of bodily imperfection, and insanity : with the 
secondary circumstance of sex : perhaps with that of age : at 
any rate with those of rank, of climate, of lineage, and of reli 
gious profession. Others, however they may apply to whole 
; classes of persons, yet in their application to different individuals 
t ire susceptible of perhaps an indefinite variety of degrees. These 
i 3annot be fully provided for by the legislator; but, as the exist- 
, 3nce of them, in every sort of case, is capable of being ascer- 
5 "ained, and the degree in which they take place is capable of 
1 Deir.g measured, provision may be made for them by the judge, 
>r other executive magistrate, to whom the several individuals 
d :hat happen to be concerned may be made known. This is the 
is ;ase, I. With the circumstance of health. 2. In some sort with 
\ ;hat of strength. 3. Scarcely with that of hardiness : still less 
o vith those of quantity and quality of knowledge, strength ofintel- 
j. ectual powers, firmness or steadiness of mind ; except in as far as 
in. i man s condition, in respect of those circumstances, may be indi 
cted by the secondary circumstances of sex, age, or rank : hardly 
; , vith that of bent of inclination,except in as far as that latent cir- 
163 :umstance is indicated by the more manifest one of habitual oc- 
ie8 iupations : hardly with that of a man s moral sensibility or biases, 
J :xcept in as far as they may be indicated by his sex, age, rank, 
nd education : not at all with his religious sensibility and 


66 Of Circumstances influencing Sensibility. [CHAP. 

religious biases, except in as far as they may be indicated by the 
religious profession he belongs to : not at all with the quantity 
or quality of his sympathetic or antipathetic sensibilities, except 
in as far as they may be presumed from his sex, age, rank, edu 
cation, lineage, or religious profession. It is the case, however, 
with his habitual occupations, with his pecuniary circumstances, 
and with his connexions in the way of sympathy. Of others, 
again, either the existence cannot be ascertained, or the degree 
cannot be measured. These, therefore, cannot be taken into 
account, either by the legislator or the executive magistrate. 
Accordingly, they would have no claim to be taken notice 
of, were it not for those secondary circumstances by which 
they are indicated, and whose influence could not well be 
understood without them. What these are has been already 

TO what XLV. It has already been observed, that different articles in 
causes there this list of circumstances apply to different exciting causes : the 

is inostocca- . , ,.. 

sion to apply circumstance of bodily strength, for instance, has scarcely any 
influence of itself (whatever it may have in a roundabout way, 
and by accident) on the effect of an incident which should 
increase or diminish the quantum of a man s property. It re 
mains to be considered, what the exciting causes are with whicr 
the legislator has to do. These may, by some accident or other 
be any whatsoever : but those which he has principally to doj 
are those of the painful or afflictive kind. With pleasurable one!* 
he has little to do, except now and then by accident : th| 
reasons of which may be easily enough perceived, at the samii 
time that it would take up too much room to unfold them here|^ 
The exciting causes with which he has principally to do, are, o:, 
the one hand, the mischievous acts, which it is his business t 
prevent ; on the other hand, the punishments, by the terror c^ 
which it is his endeavour to prevent them. Now of these tw 
sets of exciting causes, the latter only is of his production 
being produced partly by his own special appointment, parti 
in conformity to his general appointment, by the special aj 
pointment of the judge. For the legislator, therefore, as we 

vi.] Of Circumstances influencing Sensibility. 67 

as for the judge, it is necessary (if they would know what it is 
they are doing when they are appointing punishment) to have 
an eye to all these circumstances. For the legislator, lest, 
meaning to apply a certain quantity of punishment to all per 
sons who shall put themselves in a given predicament, he should 
unawares apply to some of those persons much more or much 
less than he himself intended : for the judge, lest, in applying 
to a particular person a particular measure of punishment, he 
should apply much more or much less than was intended, 
perhaps by himself, and at any rate by the legislator. They 
ought each of them, therefore, to have before him, on the one 
hand, a list of the several circumstances by which sensibility 
may be influenced ; on the other hand, a list of the several 
species and degrees of punishment which they purpose to make 
use of : and then, by making a comparison between the two, to 
form a detailed estimate of the influence of each of the circum 
stances in question, upon the effect of each species and degree 
of punishment. 

There are two plans or orders of distribution, either of which 
might be pursued in the drawing up this estimate. The one is 
to make the name of the circumstance take the lead, and under 
it to represent the different influences it exerts over the effects 
of the several modes of punishment : the other is to make the 
name of the punishment take the lead, and under it to represent 
the different influences which are exerted over the effects of it 
by the several circumstances above mentioned. Now of these 
! two sorts of objects, the punishment is that to which the inten 
tion of the legislator is directed in the first instance. This is of 
his own creation, and will be whatsoever he thinks fit to make 
it : the influencing circumstance exists independently of him, 
and is what it is whether he will or no. What he has occasion 
to do is to establish a certain species and degree of punishment : 
and it is only with reference to that punishment that he has 
occasion to make any inquiry concerning any of the circum 
stances here in question. The latter of the two plans there 
fore is that which appears by far the most useful and com* 

F 2 

68 Of Circumstances influencing Sensibility. [CHAP. 

modious. But neither upon the one nor the other plan can any 
such estimate be delivered here \ 

Analytical XLVI. Of the several circumstances contained in this cata- 

view of the . . 

circum- logue, it may be of use to give some sort of analytic view ; 

stances in- . J . ., J . 

flueucing m order that it may be the more easily discovered if any which 
ought to have been inserted are omitted; and that, with regard 
to those which are inserted, it may be seen how they differ and 

In the first place, they may be distinguished into primary 
and secondary : those may be termed primary, which operate 
immediately of themselves : those secondary, which operate 
not but by the medium of the former. To this latter head 
belong the circumstances of sex, age, station in life, education, 
climate, lineage, government, and religious profession : the rest 
are primary. These again are either connate or adventitious: 
those which are connate, are radical frame of body and radical 
frame of mind. Those which are adventitious,are either personal, 
or exterior. The personal, again, concern either a man s dis 
positions, or his actions. Those which concern his dispositions, 
concern either his body or his mind. Those which concern his 
body are health, strength, hardiness, and bodily imperfection. 
Those which concern his mind, again, concern either his under- 
standing or his affections. To the former head belong the 
circumstances of quantity and quality of knowledge, strength of f . 
understanding, and insanity. To the latter belong the circum- 1 
stances of firmness of mind, steadiness,bent of inclination, moral ( 

1 This is far from being a visionary proposal, not reducible to practice. 
I speak from experience, having actually drawn up such an estimate, 
though upon the least commodious of the two plans, and before the several 
circumstances in question had been reduced to the precise number and 
order in which they are here enumerated. This is a part of the matter 
destined for another work. See ch. xiii. [Cases unmeet], par. 2. Note, jr 
There are some of these circumstances that bestow particular denominations 
on the persons they relate to: thus, from the circumstance of bodily imper 
fections, persons are denominated deaf, dumb, blind, and so forth: from the 
circumstance of insanity, idiots, and maniacs : from the circumstance of 
age, infants*, for all which classes of persons particular provision is made in 
the Code. See B. I. tit. [Exemptions]. Persons thus distinguished will 
form so many articles in the catalogus personarum privilegiatarum. See 
Appendix, tit. [Composition]. 

vi.] Of Circumstances influencing Sensibility. 69 

sensibility, moral biases, religious sensibility, religious biases, 
sympathetic sensibility, sympathetic biases, antipathetic sensi 
bility, and antipathetic biases. Those which regard his actions, 
are his habitual occupations. Those which are exterior to him, 
regard either the things or the persons which he is concerned 
with; under the former head come his pecuniary circumstances 1 ; 
under the latter, his connexions in the way of sympathy and 

1 As to a man s pecuniary circumstances, the causes on which those cir- Analytical view 
cumstances depend, do not come all of them under the same class. The uen\\rddes~in 
absolute quantum of a man s property does indeed come under the same aman specu- 
class with his pecuniary circumstances in general : so does the profit he stanc8s. rcuin 
makes from the occupation which furnishes him with the means of liveli 
hood. But the occupation itself concerns his own person, and comes under 
the same head as his habitual amusements : as likewise his habits of 
expense : his connexions in the ways of profit and of burthen, under the 
same head as his connexions in the way of sympathy : and the circum 
stances of his present demand for money, and strength of expectation, come 
under the head of those circumstances relative to his person which regard 
his affections. 




The demand I. The business of government is to promote the happiness o: 
merK> * the society,bypunishing and rewarding. That part of its business 
part upon which consists in punishing, is more particularly the subject o: 
of the n acT Cy penal law. In proportion as an act tends to disturb that happi 
ness, in proportion as the tendency of it is pernicious, will be the 
demand it creates for punishment. What happiness consists o: 
we have already seen : enjoyment of pleasures, security from 
Tendency of II. The general tendency of an act is more or less pernicious 

an act deter- , . . , . , , , . , 

mined by its according to the sum total of its consequences : that is, accord- 
quences. ing to the difference between the sum of such as are good, anc 

the sum of such as are evil. 
Material III. It is to be observed, that here, as well as henceforward, 


quencesoniy wherever consequences are spoken of, such only are meant as 

are to be , . _ 

regarded, are material. Of the consequences ot any act, the multitude 
and variety must needs be infinite : but such of them only as 
are material are worth regarding. Now among the consequences 
of an act, be they what they may, such only, by one who views 
them in the capacity of a legislator, can be said to be material 1 3 
as either consist of pain or pleasure, or have an influence in the 
production of pain or pleasure 2 . 

1 Or of importance. 

2 In certain cases the consequences of an act may be material by serving 
as evidences indicating the existence of some other material fact, which it 
even antecedent to the act of which they are the consequences: but ever 
here, they are material only because, in virtue of such their evidentiary 
quality, they have an influence, at a subsequent period of time, in the pro 

Of Human Actions in General. 71 

IV. It is also to be observed, that into the account of the con- These de- 

, . , , . , pend in part 

sequences of the act, are to be taken not such only as might upon the 

. . , . . i , , intention. 

have ensued, were intention out of the question, but such also 
as depend upon the connexion there may be between these first- 
mentioned consequences and the intention. The connexion 
there is between the intention and certain consequences is, as 
we shall see hereafter 1 , a means of producing other conse 
quences. In this lies the" difference between rational agency and 

V. Now the intention, with regard to the consequences of an The inten- 

, f \ -11 tion depends 

act, will depend upon two things : i. The state of the will or in- as well upon 
tention, with respect to the act itself. And, 2. The state of the standing as 

,,. .,, i , j_i the will. 

understanding, or perceptive faculties, with regard to the cir 
cumstances which it is, or may appear to be, accompanied with. 
Now with respect to these circumstances, the perceptive fa 
culty is susceptible of three states : consciousness, unconscious 
ness, and false consciousness. Consciousness, when the party 
believes precisely those circumstances, and no others, to subsist, 
which really do subsist : unconsciousness, when he fails of per 
ceiving certain circumstances to subsist, which, however, do 
subsist: false consciousness, when he believes or imagines certain 
circumstances to subsist, which in truth do not subsist. 

VI. In every transaction, therefore, which is examined with in an action 
a view to punishment, there are four articles to be considered : considered 
i. The act itself, which is done. 2. The circumstances in which 2. The 5?- 

.. . , -, j , cumstances. 

it is done. 3. The intentionality that may have accompanied it. 3 . The inten- 
4. The consciousness, unconsciousness, or false consciousness, 4 . The con- 

. , ., sciousness. 

that may have accompanied it. 

What regards the act and the circumstances will be the sub 
ject of the present chapter : what regards intention and con 
sciousness, that of the two succeeding. 

VII. There are also two other articles on which the general s.^Thejno-^ 
tendency of an act depends : and on that, as well as on other disposition. 

duction of pain and pleasure: for example, by serving as grounds for con 
viction, and thence for punishment. See tit. [Simple Falsehoods], verbo 

1 See B. I. tit. [Exemptions] and tit. [Extenuations]. 

j<2 Of Human Actions in General. [CHAP. 

accounts, the demand which it creates for punishment. These are, 

1. The particular motive or motives which gave birth to_it. 

2. The general disposition which it indicates. These articles 
will be the subjeot of two other chapters. 

Acts positive VIII. Acts may be distinguished in several ways, for several 

and nega 
tive, purposes. 

They may be distinguished, in the first place, into positive 
and negative. By positive are meant such as consist in motion 
or exertion : by negative, such as consist in keeping at rest ; 
.that is, in forbearing to move or exert one s self in such and 
such circumstances. Thus, to strike is a positive act : not to 
strike on a certain occasion, a negative one. Positive acts are 
styled also acts of commission ; negative, acts of omission or 
forbearance 1 . 
Negative IX. Such acts, again, as are negative, may either be absolutely 

acts may be . " . , 

so relatively so, or relatively : absolutely, when they import the negation of 
lately. all positive agency whatsoever ; for instance, not to strike at all : 
relatively, when they import the negation of such or such a par 
ticular mode of agency ; for instance, not to strike such a person 
or such a thing, or in such a direction. 

Negative X. It is to be observed, that the nature of the act, whether 
expressed positive or negative, is not to be determined immediately by the 
and vice form of the discourse made use of to express it. An act_which 


Acts of omis- 1 The distinction between positive and negative acts runs through the 
acts. 3 whole system of offences, and sometimes makes a material difference with 
regard to their consequences. To reconcile us the better to the extensive, 
and, as it may appear on some occasions, the inconsistent signification here 
given to the word act, it may be considered, i. That in many cases, where 
no exterior or overt act is exercised, the state which the mind is in at the 
time when the supposed act is said to happen, is as truly and directly the 
result of the will, as any exterior act, how plain and conspicuous soever. 
The not revealing a conspiracy, for instance, may be as perfectly the act of 
the will, as the joining in it. In the next place, that even though the mind 
should never have had the incident in question in contemplation (insomuch 
that the event of its not happening should not have been so much as 
obliquely intentional) still the state the person s mind was in at the time 
when, if he had so willed, the incident might have happened, is in many 
cases productive of as material consequences; and not only as likely, but as 
fit to call for the interposition of other agents, as the opposite one. Thus, 
when a tax is imposed, your not paying it is an act which at any rate must 
be punished in a certain manner, whether you happened to think of paying 
it or not, 

vii.] Of Human Actions in General. 73 

is positive in its nature may be characterized by a negative ex 
pression : thus, not to be at rest, is as much as to say to move. 
So also an act, which is negative in its nature, may be character 
ized by a positive expression : thus, to forbear or omit to bring 
food to a person in certain circumstances, is signified by the 
single and positive term to starve. 

XI. In the second place, acts may be distinguished into ex- Acts exter- 
ternal and internal. By external, are meant corporal acts ; acts tenud. 

of the body : by internal, mental acts; acts of the mind. Thus, 
to strike is an external or exterior 1 act: to intend to strike, an 
internal or interior one. 

XII. Acts of discourse are a sort of mixture of the two : ex- Acts of dis- 
ternal acts, which are no ways material, nor attended with any 
consequences, any farther than as they serve to express the exist- 

I ence of internal ones. To speak to another to strike, to write 
to him to strike, to make signs to him to strike, are all so many 
. acts of discourse. 

XIII. Third, Acts that are external may be distinguished into External 
transitive and intransitive. Acts may be called transitive, when transitive or 

,.. . , , , , , , intransitive. 

the motion is communicated irom the person of the agent to 
some foreign body : that is, to such a foreign body on which the 

, effects of it are considered as being material ; as where a man 
runs against you, or throws water in your face. Acts may be 
called intransitive, when themotion is communicated to no other 

, body, on which the effects of it are regarded as material, than 
some part of the same person in whom it originated: as where a 
man runs, or washes himself 2 . 

1 An exterior act is also called by lawyers overt. 

2 The distinction is well known to the latter grammarians : it is with Distinction be- 
them indeed that it took its rise : though by them it has been applied SJJ^Kd 
rather to the names than to the things themselves. To verbs, signifying intransitive, 
transitive acts, as here described, they have given the name of transitive gr^marlansf 
verbs : those significative of intransitive acts they have termed intransitive. 

These last are still more frequently called neuter; that is,neither active nor 
passive. The appellation seems improper: since, instead of their being 
neither, they are both in one. 

To the class of acts that are here termed intransitive, belong those which 
constitute the 3rd class in the system of offences. See ch. [Di vision] and B. I. 
tit. [Self regarding Offences]. 

74 Qf Hziman Actions in General. [CHAP. 

A transitive XIV. An act of the transitive kind may be said to be in its 
commencement, or in the first stage of its progress, while the 
motion is confined to the person of the agent, and has not yet 

grest pr been communicated to any foreign body, on which the effects of 
it can be material. It may be said to be in its termination, or to 
be in the last stage of its progress, as soon as the motion or im 
pulse has been communicated to some such foreign body. It may 
be said to be in the middle or intermediate stage or stages of its 
progress, while the motion, having passed from the person of the 
agent, has not yet been communicated to any such foreign body. 
Thus, as soon as a man has lifted up his hand to strike, the act 
he performs in striking you is in its commencement : as soon as 
his hand has reached you, it is in its termination. If the act be 
the motion of a body which is separated from the person of the 
agent before it reaches the object, it may be said, during that 
interval, to be in its intermediate progress 1 , or in gradu media- 
two : as in the case where a man throws a stone or fires a bullet 
at you. 

An intransi- XV. An act of the mtransitive kind may be said to be in its 

tive act, its , 

commence- commencement, when the motion or impulse is as yet confined 
termination, to the member or organ in which it originated ; and has not yet 
been communicated to any member or organ that is distinguish 
able from the former. It may be said to be in its termination, 
as soon as it has been applied to any other part of the same per 
son. Thus, where a man poisons himself, while he is lifting upt 
the poison to his mouth, the act is in its commencement : as 
soon as it has reached his lips, it is in its termination 2 . 

Acts i tran- XVI. In the third place, acts may be distinguished into tran 

sient and . Jr 

continued, sient and continued. Thus, to strike is a transient act : to lean, 

a continued one. To buy, a transient act : to keep in one s 

possession, a continued one. * 

be?wetn c a XVI1 - I n strictness of speech there is a difference between a 
continued . continued act and a repetition of acts. It is a repetition of acts. 

1 Or in its migration, or in transitu. 

2 These distinctions will be referred to in the next chapter: ch. viii. [In 
tentionality] : and applied to practice in B. I. tit. [Extenuations]. 

vii.] Of Human Actions in General. 75 

when there are intervals filled up by acts of different natures : a act and a 
continued act, when there are no such intervals. Thus, to acts, 
lean, is one continued act : to keep striking, a repetition of 

XVIII. There is a difference, again, between a repetition of Difference 
acts, and a habit or practice. The term repetition of acts may repetition of 
be employed, let the acts in question be separated by ever such habit*" 10 
short intervals, and let the sum total of them occupy ever so 

short a space of time. The term habit is not employed but 
when the acts in question are supposed to be separated by long- 
continued intervals, and the sum total of them to occupy a con 
siderable space of time. It is not (for instance) the drinking 
ever so many times, nor ever so much at a time, in the course of 
the same sitting, that will constitute a habit of drunkenness : it 
is necessary that such sittings themselves befrequentlyrepeated. 
Every habit is a repetition of acts ; or, to speak more strictly, 
when a man has frequently repeated such and such acts after 
considerable intervals, he is said to have persevered in or con 
tracted a habit : but every repetition of acts is not a habit *. 

XIX. Fourth, acts may be distinguished into indivisible and Acts are in- 
divisible. Indivisible acts are merely imaginary : they may be divisible; 
easily conceived, but can never be known to be exemplified, Sbie, as well 
Such as are divisible may be so, with regard either to matter or to matter as 
to motion. An act indivisible with regard to matter, is the 
motion or rest of one single atom of matter. An act indivisible, 

with regard to motion, is the motion of any body, from one 
single atom of space to the next to it. 

Fifth, acts may be distinguished into simple and complex: 
simple, such as the act of striking, the act of leaning, or the act 
of drinking, above instanced : complex, consisting each of a 
\ multitude of simple acts, which, though numerous and hetero 
geneous, derive a sort of unity from the relation they bear to 
some common design or end ; such as the act of giving a dinner, 

1 A habit, it should seem, can hardly in strictness be termed an aggre 
gate of acts : acts being a sort of real archetypal entities, and habits a 
kind of fictitious entities or imaginary beings, supposed to be constituted 
by, or to result as it were out of, the former. 

7 6 Of Human Actions in General. [CHAP. 

the act of maintaining a child, the act of exhibiting a triumph, 
the act of bearing arms, the act of holding a court, and so 

Caution re- XX. It ha s been every now and then made a question, what it 
ambiguity of is in such a case that constitutes one act : where one act has 
ended, and another act has begun : whether what has happened 
has been one act or many 1 . These questions, it is now evident, 
may frequently be answered, with equal propriety, in opposite 
ways : and if there be any occasions on which they can be 
answered only in one way, the answer will depend upon the na 
ture of the occasion, and the purpose for which the question is 
proposed. A man is wounded in two fingers at one stroke Is 
it one wound or several ? A man is beaten at 12 o clock, and 
again at 8 minutes after 12 Is it one beating or several ? You 
beat one man, and instantly in the same breath you beat an 
other Is this one beating or several ? In any of these cases it 
may be one, perhaps, as to some purposes, and several as to 
others. These examples are given, that men nmy_be_ aware 
of the ambiguity of language : and neither harass themselves 
with unsolvable doubts, nor one another with interminable^ 

circum- XXI. So much with regard to acts considered in themselves : 

to be con- we come now to speak of the circumstances with which they 
may have been accompanied. These must necessarily be taken 
into the account before any thing can be determined relative to i* 
the consequences. What the consequences of an act may bet 
upon the whole can never otherwise be ascertained : it can never 
be known whether it is beneficial, or indifferent, or mischievous. 
In some circumstances even to kill a man may be a beneficial 
act : in others, to set food before him may be a pernicious one. 
XXII. Now the circumstances of an act, are, what ? Anyf 
objects 2 whatsoever. Take any act whatsoever, there is nothing 
in the nature of things that excludes any imaginable object from 

1 Distinctions like these come frequently in question in the course o 

2 Or entities. See B. II. tit, [Evidence], [Facts]. 

viz.] Of Human Actions in General. 77 

being a circumstance to it. Any given object may be a circum 
stance to any other 1 . 

XXIII. We have already had occasion to make mention for Ch-cum- 

a moment of the consequences of an act : these were distinguished materiaiand 
into material and immaterial. In like manner may the circum- lm 
stances of it be distinguished. Now materiality is a relative 
term: applied to the consequences of an act, it bore relation to 
pain and pleasure : applied to the circumstances, it bears rela 
tion to the consequences. A circumstance may be said to be 
material, when it bears a visible relation in point of causality 
to the consequences: immaterial, when it bears no such visible 

XXIV. The consequences of an act are events 2 . A circum- A circum 
stance may be related to an event in point of causality in 

one of four ways : I. In the way of causation or production. point e of fc cau- 

2._In the_way of derivation. 3. In the way of collateral con- 
t nexion. 4. In the way of conjunct influence. It may be said Suction 
: to be related to the event in the way of causation, when it is of t 
the number of those that contribute to the production of such 
event: in the way of derivation, when it is of the number of the m flu?nce! Ct 
events to the production of which that in question has been 
contributory : in the way of collateral connexion, where the 
circumstance in question, and the event in question, without 
being either of them instrumental in the production of the other, 
,are related, each of them, to some common object, which has 
been concerned in the production of them both : in the way of 
conjunct influence, when, whether related in any other way or 

1 The etymology of the word circumstance is perfectly characteristic of drcumstancf 
its import: circum stantia, things standing round: objects standing round onh^wwd?" 
ft given object. I forget what mathematician it was that defined God to 
be a circle, of which the centre is every where, but the circumference no 
where. In like manner the field of circumstances, belonging to any act, 
may be defined a circle, of which the circumference is no where, but of 
which the act in question is the centre. Now then, as any act may, for 
the purpose of discourse, be considered as a centre, any other act or object 
whatsoever may be considered as of the number of those that are standing 
round it. 

* See B. II. tit. [Evidence], [Facts]. 

78 Of Human Actions in General. [CHAP. 

not, they have both of them concurred in the production of some 
common consequence. 

Example. XXV. An example may be of use. In the year i628,Villiers, 
tiSfof Buck- Duke of Buckingham, favourite and minister of Charles I. of 
England, received a wound and died. The man who gave it 
him was one Felton,who, exasperated at the mal-administration 
of which that minister was accused, went down from London to 
Portsmouth, where Buckingham happened then to be, made his 
way into his anti-chamber, and finding him busily engaged in 
conversation with a number of people round him, got close to 
him, drew a knife and stabbed him. In the effort, the assas 
sin s hat fell off, which was found soon after, and, upon searching 
him, the bloody knife. In the crown of the hat were found 
scraps of paper, with sentences expressive of the purpose he 
was come upon. Here then, suppose the event in question is 
the wound received by Buckingham : Felton s drawing out his 
knife, his making his way into the chamber, his going down to 
Portsmouth, his conceiving an indignation at the idea of Buck 
ingham s administration,that administrationitself, Charles s ap 
pointing such a minister, and so on, higher and higher without* 
end, are so many circumstances, related to the event of Buck- \ \ 
ingham s receiving the wound, in the way of causation or pro-l 
duction : the bloodiness of the knife, a circumstance related to 
the same event in the way of derivation : the finding of the hat, 
upon the ground, the finding the sentences in the hat, and the II 
writing them, so many circumstances related to it in the way oi * 
collateral connexion: and the situation and conversations of thej 
people about Buckingham, were circumstances related to the! 
circumstances of Felton s making his way into the room, goinf, 
down to Portsmouth, and so forth, in the way of conjunct influl 
ence; inasmuch as they contributed in common to the event o:]_ 
Buckingham s receiving the wound, by preventing him fron 
putting himself upon his guard upon the first appearance of tin 
intruder 1 . 

1 The division may be farther illustrated and confirmed by the mor 
simple and particular case of animal generation. To production correspond 

vii.j Of Human Actions in General. 79 

XXVI. These several relations do not all of them attach upon it is not 
an event with equal certainty. In the first place, it is plain, timt y has e cir- 
indeed, that every event must have some circumstance or other, rSed "oft 
jind in truth, an indefinite multitude of circumstances, related to ways. 
it in the way of production : it must of course have a still greater 
multitude of circumstances related to it in the way of collateral 
connexion. But it does not appear necessary that every event 
should have circumstances related to it in the way of derivation : 
nor therefore that it should have any related to it in the way of 
conjunct influence. But of the circumstances of all kinds which 
actually do attach upon an event, it is only a very small number 
that can be discovered by the utmost exertion of the human 
faculties : it is a still smaller number that ever actually do attract 
our jnptice : when occasion happens, more or fewer of them will 
be discovered by a man in proportion to the strength, partly of 
his intellectual powers, partly of his inclination x . It appears 

paternity : to derivation, filiation : to collateral connexion, collateral con 
sanguinity: to conjunct influence, marriage and copulation. 

If necessary, it might be again illustrated by the material image of a 
chain, such as that which, according to the ingenious fiction of the ancients, 
is attached to the throne of Jupiter. A section of this chain should then 
- be exhibited by way of specimen, in the manner of the diagram of a pedi 
gree. Such a figure I should accordingly have exhibited, had it not been 
for the apprehension that an exhibition of this sort, while it made the 
subject a small matter clearer to one man outof a hundred, might, like the 
mathematical formularies we see sometimes employed for the like purpose, 
make it more obscure and formidable for the other ninety-nine. 

1 The more remote a connexion of this sort is, of course the more obscure. 

j It will often happen that a connexion, the idea of which would at first 

; ! sight appear extravagant and absurd, shall be rendered highly probable, 

and indeed indisputable, merely by the suggestion of a few intermediate 

1 circumstances. 

At Rome, 390 years before the Christian sera, a goose sets up a cackling : 
two thousand years afterwards a king of France is murdered. To consider 
these two events, and nothing more, what can appear more extravagant 
. than the notion that the former of them should have had any influence on 
, the production of the latter ? Fill up the gap, bring to mind a few inter- 
1 mediate circumstances, and nothing can appear more probable. It was the 
(l cackling of a parcel of geese, at the time the Gauls had surprised the Capi 
tol, that saved the Roman commonwealth : had it not been for the ascend- 
e ancy that commonwealth acquired afterwards over most of the nations of 
Europe, amongst others over France, the Christian religion, humanly 
speaking, could not have established itself in the manner it did in that 
, e country. Grant then, that such a man as Henry IV. would have existed, 
j. no man, however, would have had those motives, by which Ravaillac, mis- 

80 Of Human Actions in General. [CHAP. 

therefore that the multitude and description of such of the cir 
cumstances belonging to an act, as may appear to be material, 
will be determined by two considerations : i. By the nature of 
things themselves. 2. By the strength or weakness of the facul 
ties of those who happen to consider them. 

Use of this XXVII. Thus much it seemed necessary to premise in general 
concerning acts, and their circumstances, previously to the con 
sideration of the particular sorts of acts with their particular 
circumstances, with which we shall have to do in the body of 
the work. An act of some sort or other is necessarily included 
in the notion of every offence. Together with this act, under 
the notion of the same offence, are included certain circum- 
stances : which circumstances enter into the essence of the 
offence, contribute by their conjunct influence to the production 
of its consequences, and in conjunction with the act are brought 
into view by the name by which it stands distinguished. These 
we shall have occasion to distinguish hereafter by the name of 
criminative circumstances 1 . Other circumstances again entering 
into combination with the act and the former set of circumstances, 
are productive of still farther consequences. These additional 
consequences, if they are of the beneficial kind,bestow,according 
to the value they bear in that capacity, upon the circumstances 
to which they owe their birth the appellation of exculpative^^! 
extenuative circumstances 3 : if of the mischievous kind, they; 
bestow on them the appellation of aggravative circumstances 4 . 
Of all these different sets of circumstances, the criminative are; 
connected with the consequences of the original offence, in theh 
way of production ; with the act, and with one another, in th< 
way of conjunct influence : the consequences of the origina 
offence with them, and with the act respectively, in the way oj 
derivation : the consequences of the modified offence, with th 

led by a mischievous notion concerning the dictates of that religion, wa 
prompted to assassinate him. 

1 See B. 1. 1 1. [Crim. circumstances]. 

2 See B. I. tit. [Justifications]. 

3 See B. I. tit. [Extenuations]. 
* See B. I. tit. [Aggravations]. 

vii.] Of Human Actions in General. 81 

criminative, exculpative, and extenuative circumstances respec 
tively, in the way also of derivation : these different sets of 
circumstances, with the consequences of the modified act or 
offence, in the way of production : and with one another (in 
respect of the consequences of the modified act or offence) in the 
way of conjunct influence. Lastly, whatever circumstances can 
be seen to be connected with the consequences of the offence, 
whether directly in the way of derivation, or obliquely in the 
way^of collateral affinity (to wit, in virtue of its being connected, 
in the way of derivation, with some of the circumstances with 
which they stand connected in the same manner) bear a material 
relation to the offence in the way of evidence, they may accord 
ingly be styled evidentiary circumstances, and may become of 
use, by being held forth upon occasion as so many proofs, 
indications, or evidences of its having been committed x . 

1 See B. I. tit. [Accessory Offences] and B. II. tit. [Evidence]. 

It is evident that this analysis is equally applicable to incidents of a 
purely physical nature, as to those in which moral agency is concerned. If 
therefore it be just and useful here, it might be found not impossible, per 
haps, to find some use for it in natural philosophy. 




Recapituia- j. go much with regard to the two first of the articles upon 
which the evil tendency of an action may depend: viz. the act 
itself, and the general assemblage of the circumstances with 
which it may have been accompanied. We come now to con 
sider the ways in which the particular circumstance of intention 
may be concerned in it. 

The inten- II. First, then, the intention or will may regard either of two 
lizard? objects : i. The act itself : or, 2. Its consequences. Of these 
or, 2! The objects, that which the intention regards may be styled inten- 
quences. tional. If it regards the act, then the act may be said to be 
intentional 1 : if the consequences, so also then may the conse 
quences. If it regards both the act and consequences, the 
whole action may be said to be intentional. Whichever of those 
articles is not the object of the intention, may of course be said 
to be unintentional. 

Ambiguity of x On this occasion the words voluntary and involuntary are commonly 
\niuntary and employed. These, however, I purposely abstain from, on account of the * 
involuntary, extreme ambiguity of their signification. By a voluntary act is meant 
sometimes, any act, in the performance of which the will has had any con 
cern at all ; in this sense it is synonymous to intentional : sometimes such 
acts only, in the production of which the will has been determined by 
motives not of a painful nature ; in this sense it is synonymous to uncon-l 
strained, or uncoerced: sometimes such acts only, in the production of 
which the will has been determined by motives, which, whether of the 
pleasurable or painful kind, occurred to a man himself, without being sug 
gested by any body else ; in this sense it is synonymous to spontaneous. . 
The sense of the word involuntary does not correspond completely to that 
of the word voluntary. Involuntary is used in opposition to intentional ; 
and to unconstrained : but not to spontaneous. It might be of use to con 
fine the signification of the words voluntary and involuntary to one single 
and very narrow case, which will be mentioned in the next note. 

Of Intentionality. 83 

III. The act may very easily be intentional without the con- it may re 
sequences ; and often is so. Thus, you may intend to touch a SSthout e *ny 
man. without intending to hurt him : and yet, as the conse- sequence"! 
quences turn out, you may chance to hurt him. 

IV. The consequences of an act may also be intentional, with- or the con- 

. . * p t sequences 

out the act s being intentional throughout ; that is, without its without re- 

. . r , . , . garding the 

being intentional in every stage of it : but this is not so frequent act in ail its 

a case as the former. You intend to hurt a man, suppose, by run 
ning against him, and pushing him down : and you run towards 
him accordingly : but a second man coming in on a sudden 
between you and the first man, before you can stop yourself, you 
run against the second man, and by him push down the first. 

V. But the consequences of an act cannot be intentional. ~^|J* " t J: e 
without the act s being itself intentional in at least the first Carding the 
stage. If the act be not intentional in the first stage, it is 
no act of yours : there is accordingly no intention on your 
part to produce the consequences : that is to say, the individual 
consequences. All there can have been on your part is a distant 
intention to produce other consequences, of the same nature, by 
some act of yours, at a future time : or else, without any inten 
tion, a bare wish to see such event take place. The second man, 
suppose, runs of his own accord against the first, and pushes him 
down. You had intentions of doing a thing of the same nature : 
viz. To run against him, and push him down yourself ; but you 
had done nothing in pursuance of those intentions : the indi 
vidual consequences therefore of the act, which the second man 
performed in pushing down the first, cannot be said to have 
been on your part intentional *. 

1 To render the analysis here given of the possible states of the mind in Anactuninten- 
point of intentionality absolutely complete, it must be pushed to such a stage 1 , may be St 
farther degree of minuteness, as to some eyes will be apt to appear trifling. * with res P ect 
On this account it seemed advisable to discard what follows, from the text i. Quantity of 
to a place where any one who thinks proper may pass by it. An act of the "^irecdon 6 ? 
body, when of the positive kind, is a motion : now in motion there are 3- velocity. 
always three articles to be considered : i. The quantity of matter that 
moves : 2. The direction in which it moves : and, 3. The velocity with 
which it moves. Correspondent to these three articles, are so many modes 
of intentionality, with regard to an act, considered as being only in its first 
stage. To be completely unintentional, it must be unintentional with 

G 2 

84 Of Intentionality. [CHAP. 

Aconse- VI. Second. A consequence, when it is intentional, may 

when inten- either be directly so, or only obliquely. It may be said to be 
be directly directly or lineally intentional, when the prospect of producing 
liqueiy. it constituted one of the links in the chain of causes by which 
the person was determined to do the act. It may be said to be 
obliquely or collaterally intentional, when, although the conse 
quence was in contemplation, and appeared likely to ensue in 
case of the act s being performed, yet the prospect of producing 
such consequence did not constitute a link in the aforesaid 

When di- VII. Third. An incident, which is directly intentional, may 
matefyso/or either be ultimately so, or only mediately. It may be said to be 
L e y ultimately intentional, when it stands last of all exterior events j 
in the aforesaid chain of motives ; insomuch that the prospect of > 
the production of such incident, could there be a certainty of its 
taking place, would be sufficient to determine the will, without 
the prospect of its producing any other. It may be said to be j 
mediately intentional, and no more, when there is some other 
incident, the prospect of producing which forms a subsequent it 
linkin the same chain : insomuch that the prospect of producing 

respect to every one of these three particulars. This is the case with those 
acts which alone are properly termed involuntary : acts, in the performance! 
of which the will has no sort of share : such as the contraction of the heart 
and arteries. 

Upon this principle, acts that are unintentional in their first stage, may( 
be distinguished into such as are completely unintentional, and such as are 
incompletely unintentional : and these again may be unintentional, eitheii 
in point of quantity of matter alone, in point of direction alone, in point oJj 
velocity alone, or in any two of these points together. 

The example given further on may easily be extended to this part of th( 
analysis, by any one who thinks it worth the while. 

There seem to be occasions in which even these disquisitions, minute a: 
they may appear, may not be without their use in practice. In the case o 
homicide, for example, and other corporal injuries, all the distinctions heri 
specified may occur, and in the course of trial may, for some purpose 01 
other, require to be brought to mind, and made the subject of discoursci 
What may contribute to render the mention of them pardonable, is the us 
that might possibly be made of them in natural philosophy. In the hand 
of an expert metaphysician, these, together with the foregoing chapter o 
human actions, and the section on facts in general, in title Evidence of th 
Book of Procedure, might, perhaps, be made to contribute somethin 
towards an exhaustive analysis of the possible varieties of mechanic 

viii.] Of Intentionality. 85 

the former would not have operated as a motive, but for the 
tendency which it seemed to have towards the production of the 

VIII. Fourth. When an incident is directly intentional, it When di- 
may either be exclusively so, or inexclusively. It may be said tionai, it 
to be exclusively intentional, when no other but that very indi- dusiveiy so, 
vidual incident would have answered the purpose, insomuch that siveiy. 

no other incident had any share in determining the will to the 
act in question. It may be said to have been inexclusively 1 in 
tentional, when there was some other incident, the prospect of 
which was acting upon the will at the same time. 

IX. Fifth. When an incident is inexclusively intentional, it When inex- 
may be either conjunctively so, disjunctively, 01 indiscriminately, may he con- 
It may be said to be conjunctively intentional with regard to disjunc- 
such other incident, when the intention is to produce both : dis- disoriir5n- m 
junctively, when the intention is to produce either the one or a eysc 
the other indifferently, but not both : indiscriminately, when the 
intention is indifferently to produce either the one or the other, 

or both, as it may happen. 

X. Sixth. When two incidents are disjunctively intentional, wb en dis- 

J J . junctively, it 

they may be so with or without preference. They may be said may be with 
to be so with preference, when the intention is, that one of them preference, 
in particular should happen rather than the other : without pre 
ference, when the intention is equally fulfilled, whichever of them 
happens 2 . 

XI. One example will make all this clear. William II. king Example. 
of England, being out a stag-hunting, received from Sir Walter 

1 Or concurrently. 

2 There is a difference between the case where an incident is altogether Difference be- 
unintentional, and that in which, it being disjunctively intentional with *&& bdng 
reference to another, the preference is in favour of that other. In the first "^dSunc^ 1 
case, it is not the intention of the party that the incident in question should dreiyTnten- 
happen at all: in the latter case, the intention is rather that the other ti^eiecUonis 
should happen: but if that cannot be, then that this in question should m favour of the 
happen rather than that neither should, and that both, at any rate, should ot 

not happen. 

All these are distinctions to be attended to in the use of the particle or: 
a particle of very ambiguous import, and of great importance in legislation. 
See Append, tit. [Composition]. _, 

86 Of Intentionally. [CHAP. 

Tyrrel a wound, of which he died 1 . Let us take this case, and 
diversify it with a variety of suppositions, correspondent to the 
distinctions just laid down. 

1. First then, Tyrrel did not so much as entertain a thought 
of the king s death ; or, if he did, looked upon it as an event of 
which there was no danger. In either of these cases the in 
cident of his killing the king was altogether unintentional. 

2. He saw a stag running that way, and he saw the king 
riding that way at the same time : what he aimed at was to kill 
the stag : he did not wish to kill the king : at the same time he 
saw, that if he shot, it was as likely he should kill the king \ 
as the stag : yet for all that he shot, and killed the king ac 
cordingly. In this case the incident of his killing the king was 
intentional, but obliquely so. 

3. He killed the king on account of the hatred he bore him, 
and for no other reason than the pleasure of destroying him. 
In this case the incident of the king s death was not only directly j 
but ultimately intentional. 

4. He killed the king, intending fully so to do ; not for any h 
hatred he bore him, but for the sake of plundering him when 
dead. In this case the incident of the king s death was directly [ 
intentional, but not ultimately : it was mediately intentional. \ 

5. He intended neither more nor less than to kill the king. 
He had no other aim nor wish. In this case it was exclusively < 
as well as directly intentional : exclusively, to wit, with regard! > 
to every other material incident. 

6. Sir Walter shot the king in the right leg, as he was pluck 
ing a thorn out of it with his left hand. His intention was, by 
shooting the arrow into his leg through his hand, to cripple him 
in both those limbs at the same time. In this case the incident 
of the king s being shot in the leg was intentional : and that 
conjunctively with another which did not happen; viz. his being 
shot in the hand. 

7. The intention of Tyrrel was to shoot the king either in the 
hand or in the leg, but not in both ; and rather in the hanc 

Hume s Hist. 

vni.] Of Intentionally. 87 

than in the leg. In this case the intention of shooting in the 
hand was disjunctively concurrent, with regard to the other in 
cident, and that with preference. 

8. His intention was to shoot the king either in the leg or 
the hand, whichever might happen : but not in both. In this 
case theintention was inexclusive, but disjunctively so : yet that, 
however, without preference. 

9. His intention was to shoot the king either in the leg or 
the hand, or in both, as it might happen. In this case the 
intention was indiscriminately concurrent, with respect to the 
two incidents. 

XII. It is to be observed, that an act may be unintentional intentionai- 

J ityoftheact 

in any stage or stages of it, though intentional in the preceding : with respect 

,,,,... . . 5 to its differ- 

ana, on the other hand, it may be intentional in any stage or cut stagef, 
stages of it, and yet unintentional in the succeeding l . But terfai. 
whether it be intentional or no in any preceding stage, is im 
material, with respect to the consequences, so it be unintentional 
in the last. The only point, with respect to which it is material, 
is the proof. The more stages the act is unintentional in, the 
more apparent it will commonly be, that it was unintentional 
with respect to the last. If a man, intending to strike you on 
the cheek, strikes you in the eye, and puts it out, it will probably 
be difficult for him to prove that it was not his intention to 
strike you in the eye. It will probably be easier, if his intention 
was really not to strike you, or even not to strike at all. 

XIII. It is frequent to hear men speak of a good intention, of Goodness 

, , . . . ITT and badness 

a bad intention ; ot the goodness and badness of a man s inten- of intention 
tion: a circumstance on which great stress is generally laid. It 
is indeed of no small importance, when properly understood : 
but the import of it is to the last degree ambiguous and obscure. 
Strictly speaking, nothing can be said to be good or bad, but 
either in itself ; which is the case only with pain or pleasure : 
or on account of its effects ; which is the case only with things 
that are the causes or preventives of pain and pleasure. But in 
a figurative and less proper way of speech, a thing may also be 
1 See ch. vii. [Actions], par. 14. 


Of Lntentwnality . 

styled good or bad, in consideration of its cause. Now the effects 
of an intention to do such or such an act, are the same objects 
which we have been speaking of under the appellation of its 
consequences : and the causes of intention are called motives. A 
man s intention then on any occasion may be styled good or 
bad, with reference either to the consequences of the act, or with 
reference to his motives. If it be deemed good or bad in any 
sense, it must be either because it is deemed to be productive of 
good or of bad consequences, or because it is deemed to originate 
from a good or from a bad motive. But the goodness or bad 
ness of the consequences depend upon the circumstances. Now 
the circumstances are no objects of the intention. A man in 
tends the act : and by his intention produces the act : but as to 
the circumstances, he does not intend them : he does not, inas 
much as they are circumstances of it, produce them. If by 
accident there be a few which he has been instrumental in pro 
ducing, it has been by former intentions, directed to former acts, 
productive of those circumstances as the consequences : at the 
time in question he takes them as he finds them. Acts, with 
their consequences, are objects of the will as well as of the 
understanding : circumstances, as such, are objects of the under 
standing only. All he can do with these, as such, is to know or 
not to know them: in other words, to be conscious of them, or 
not conscious. To the title of Consciousness belongs what is 
to be said of the goodness or badness of a man s intention, as 
resulting from the consequences of the act : and to the head of 
Motives, what is to be said of his intention, as resulting from 
the motive. 



I. So far with regard to the ways in which the will or inten- Connexion 

, . , , , . . , of this chap- 

tion may be concerned in the production ot any incident : we ter with the 
come now to consider the part which the understanding or r 
perceptive faculty may have borne, with relation to such in 

II. A certain act has been done, and that intentionally : that Acts advised 

... . and unad- 

act was attended with certain circumstances : upon these cir- vised: con- 

, , f -, , sciousness, 

cumstances depended certain ot its consequences ; and amongst what. 

the rest, all those which were of a nature purely physical. Now 
then,take any one of these circumstances, it is plain, that a man, 
at the time of doing the act from whence such consequences 
ensued, may have been either conscious, with respect to this 
circumstance, or unconscious. In other words, he may either 
have been aware of the circumstance, or not aware : it may 
either have been present to his mind, or not present. In the 
first case, the act may be said to have been an advised act, with 
respect to that circumstance : in the other case, an unadvised 

III. There are two points, with regard to which an act may Unadvised- 
have been advised or unadvised : I. The existence of the circum 
stance itself. 2. The materiality of it l . 

IV. It is manifest, that with reference to the time of the The circum- 

, . , stance may 

act, such circumstance may have been either present, past, or have been 

/. , present, 

future. past, or 

V. An act which is unadvised, is either heedless, or not heed 
less. It is termed heedless, when the case is thought to be 
such, that a person of ordinary prudence 2 , if prompted by an 

1 See ch. vii. [Actions], par. 3. 2 See ch. vi. [Sensibility], par. 12. 

9 Of Consciousness. [CHAP. 

ordinary share of benevolence, would have been likely to have 
bestowed such and so much attention and reflection upon the 
material circumstances, as would have effectually disposed him 
to prevent the mischievous incident from taking place : not 
heedless, when the case is not thought to be such as above 
mentioned 1 . 

VL A g ain - Whether a man did or did not suppose the ex- 
mis -lup istence or materiality of a given circumstance, it may be that he 
posai. did suppose the existence and materiality of some circumstance, 
which either did not exist, or which, though existing, was not 
material. In such case the act may be said to be mis-advised, 
with respect to such imagined circumstance : and it maybe said, 
that there has been an erroneous supposition, or a mis-supposal 
in the case. 

posedSr. VIL Now a circumstanc e, the existence of which is thus 
might hTve erroneousl 7 supposed, may be material either, I. In the way of 
te e r e iaim a the P revention : or > 2 In tliat of compensation. It maybe said to 
way either of be material in the way of prevention, when its effect or tendency, 

prevention i -, ., . , J 

or of com- nad it existed, would have been to prevent the obnoxious con-o 
sequences : in the way of compensation, when that effect or 
tendency would have been to produce other consequences, the 
beneficialnessof which would haveout- weighed themischievous-r 
ness of the others. 

be eTs y u have VI11 Ii} is manifest tliat wit h reference to the time of th(( 
pSed S pre- act, such imaginary circumstance may in either case have been 
OT future. supposed either to be present, past, or future. 

IX. To return to the example exhibited in the preceding 

from the last chapter. 

10. Tyrrel intended to shoot in the direction in which h 
shot ; but he did not know that the king was riding so nea 
that way. In this case the act he performed in shooting, th 
act of shooting, was unadvised, with respect to the existence o 
the circumstance of the king s being so near riding that way 

11. He knew that the king was riding that way : but at tt 

1 See B. I. tit. [Extenuations]. 

x.] Of Consciousness. 91 

distance at which the king was, he knew not of the probability 
there was that the arrow would reach him. In this case the 
act was unadvised, with respect to the materiality of the cir 

12. Somebody had dipped the arrow in poison, without 
Tyrrel s knowing of it. In this case the act was unadvised, 
with respect to the existence of a past circumstance. 

13. At the very instant that Tyrrel drew the bow, the king, 
being screened from his view by the foliage of some bushes, was 
riding furiously, in such manner as to meet the arrow in a 
direct line : which circumstance was also more than Tyrrel 
knew of. In this case the act was unadvised, with respect to 

* the existence of a present circumstance. 

14. The king being at a distance from court, could get 
nobody to dress his wound till the next day ; of which circum 
stance Tyrrel was not aware. In this case the act was unad- 

j vised, with respect to what was then a, future circumstance. 

15. Tyrrel knew of the king s being riding that way, of his 
j being so near, and so forth ; but being deceived by the foliage 

of the bushes, he thought he saw a bank between the spot from 
; which he shot, and that to which the king was riding. In this 
I case the act was mis-advised, proceeding on the mis-supposal of 

(a preventive circumstance. 
16. Tyrrel knew that every thing was as above, nor was he 
i deceived by the supposition of any preventive circumstance. 
, But he believed the king to be an usurper : and supposed he 
! was coming up to attack a person whom Tyrrel believed to be 
the rightful king, and who was riding by Tyrrel s side. In 
3) this case the act was also mis-advised, but proceeded on the 
j mis-supposal of a compensative circumstance. 

| X. Let us observe the connexion there is between intention- in what case 
{ ality and consciousness. When the act itself is intentional, and 
\ with respect to the existence of all the circumstances advised, 
.6 as also with respect to the materiality of those circumstances, in 
relation to a given consequence, and there is no mis-supposal seq 
with regard to any preventive circumstance, that consequence 

Of Consciousness. 



A misad 
vised act 
may be rash 
or not rash 

The inten 
tion may be 
good or bad 
in itself, in 
of the motive 
as well as 
the eventual 

must also be intentional : in other words ; advisedness, with 
respect to the circumstances, if clear from the mis-supposal of 
any preventive circumstance, extends the intentionality from 
the act to the consequences. Those consequences may be 
either directly intentional, or only obliquely so : but at any 
rate they cannot but be intentional. 

XI. To go on with the example. If Tyrrel intended to shoot 
in the direction in which the king was riding up, and knew that 
the king was coming to meet the arrow, and knew the pro 
bability there was of his being shot in that same part in which 
he was shot, or in another as dangerous, and with that same \ 
degree of force, and so forth, and was not misled by the erro 
neous supposition of a circumstance by which the shot would 
have been prevented from taking place, or any such other pre 
ventive circumstance, it is plain he could not but have intended j 
the king s death. Perhaps he did not positively wish it ; but* 
for all that, in a certain sense he intended it. 

XII. What heedlessness is in the case of an unadvised act,>i 
rashness is in the case of a misadvised one. A misadvised actl 
then may be either rash or not rash. It may be termed rash,(, 
when the case is thought to be such, that a person of ordinary) 
prudence, if prompted by an ordinary share of benevolence. 
would have employed such and so much attention and reflection 
to the imagined circumstance, as,by discovering to him the non 
existence, improbability, or immateriality of it, would hav 
effectually disposed him to prevent the mischievous inciden 
from taking place. 

XIII. In ordinary discourse, when a man does an act o 
which the consequences prove mischievous, it is a commo) 
thing to speak of him as having acted with a good intention o 
with a bad intention, of his intention s being a good one or ; 
bad one. The epithets good and bad are all this while applied 
we see, to the intention : but the application of them is mos 
commonly governed by a supposition formed with regard to th- 
nature of the motive. The act, though eventually it prov 
mischievous, is said to be done with a good intention, when it i 

ix.] Of Consciousness. 93 

supposed to issue from a motive which is looked upon as a good 
motive : with a bad intention, when it is supposed to be the 
result of a motive which is looked upon as a bad motive. But 
the nature of the consequences intended, and the nature of the 
motive which gave birth to the intention, are objects which, 
though intimately connected, are perfectly distinguishable. The 
intention might therefore with perfect propriety be styled a 
good one, whatever were the motive. It might be styled a 
good one, when not only the consequences of the act prove mis 
chievous, but the motive which gave birth to it was what is 
called a bad one. To warrant the speaking of the intention as 
being a good one, it is sufficient if the consequences of the act, 
had they proved what to the agent they seemed likely to be, 
would have been of a beneficial nature. And in the same 
manner the intention may be bad, when not only the conse 
quences of the act prove beneficial, but the motive which gave 
birth to it was a good one. 

XIV. Now, when a man has a mind to speak of your intention it is better- 
as being good or bad, with reference to the consequences, if he S 
speaks of it at all he must use the word intention, for 

is no other. But if a man means to speak of the motive from or bak? not 
which your intention originated, as being a good or a bad one, %S. the 
he is certainly not obliged to use the word intention : it is at 
least as well to use the word motive. By the supposition he 
means the motive ; and very likely he may not mean the inten 
tion. For what is true of the one is very often not true of the 
other. The motive may be good when the intention is bad : 
i the intention may be good when the motive is bad : whether 
they are both good or both bad, or the one good and the other 
bad, makes, as we shall see hereafter, a very essential difference 
with regard to the consequences 1 . It is therefore much better, 
when motive is meant, never to say intention. 

XV. An example will make this clear. Out of malice a man Example, 
prosecutes you for a crime of which he believes you to be guilty, 

but of which in fact you are not guilty. Here the consequences 
1 See ch. xii. [Consequences]. 

94 Qf Consciousness. [CHAP. 

of his conduct are mischievous : for they are mischievous to you 
at any rate, in virtue of the shame and anxiety which you are 
made to suffer while the prosecution is depending : to which is 
to be added, in case of your being convicted, the evil of the 
punishment. To you therefore they are mischievous ; nor is 
there any one to whom they are beneficial. The man s motive 
was also what is called a bad one : for malice will be allowed by 
every body to be a bad motive. However, the consequences of 
his conduct, had they proved such as he believed them likely to 
be, would have been good : for in them would have been in 
cluded the punishment of a criminal, which is a benefit to all j 
who are exposed to suffer by a crime of the like nature. The 
intention therefore, in this case, though not in a common way | 
of speaking the motive, might be styled a good one. But of 
motives more particularly in the next chapter, 
intention, XVI. In the same sense the intention, whether it be positivelv 

in what .. . \ 

cases it may good or no, so long as it is not bad, may be termed innocent. 
Accordingly, let the consequences have proved mischievous, and i 
let the motive have been what it will, the intention may bep 
termed innocent in either of two cases : i. In the case of un- 
advisedness with respect to any of the circumstances on which 
the mischievousness of the consequences depended : 2. In the! 
case of mw-advisedness with respect to any circumstance, which, 
had it been what it appeared to be, would have served either id 
prevent or to outweigh the mischief. 

intentional- XVII. A few words for the purpose of applying what h 

ityandcon- , . , .r . . . J ^ . 

sciousness, been said to the Koman law. Unintentionally, and mnocen 

how spoken < ,,- 1,1 i -i i -, . , 

of in the oi intention, seem both to be included in the case of info 
* tunium, where there is neither dolus nor culpa. Unadvisedne 
coupled with heedlessness, and mis-advisedness coupled wit 
rashness, correspond to the culpa sine dolo. Direct intentior 
ality corresponds to dolus. Oblique intentionality seems hard 
to have been distinguished from direct ; were it to occur, 
would probably be deemed also to correspond to dolus. Tl 
division into culpa, lota, levis, and levissima, is such as nothin 
certain can correspond to. What is it that it expresses ? A di 

ix.] Of Consciousness. 


tinction, not in the case itself, but only in the sentiments which 
any person (a judge, for instance) may find himself disposed to 
entertain with relation to it : supposing it already distinguished 
into three subordinate cases by other means. 

The word dolus seems ill enough contrived : the word culpa as 
indifferently. Dolus, upon any other occasion, would be under 
stood to imply deceit, concealment 1 , clandestinity 2 : but here it 
is extended to open force. Culpa, upon any other occasion, 
would be understood to extend to blame of every kind. It 
would therefore include dolus 3 . 

XVIII. The above-mentioned definitions and distinctions are Use of this 
far from being mere matters of speculation. They are capable Smg 6 pre " 
of the most extensive and constant application, as well to moral chapter - 
discourse as to legislative practice. Upon the degree and bias 
af a man s intention, upon the absence or presence of conscious 
ness or mis-supposal, depend a great part of the good and bad, 
more especially of the bad consequences of an act; and on this, 
is well as other grounds, a great part of the demand for punish - 

1 See B. I. tit. [Theft] verbo [amenable]. 
* Dolus, an virtus quis in hoste requirit ? ViEGIL. 
5oAo> 776 KOI d/^>a8&f. HOMER. 

. . 

I pretend not here to give any determinate explanation of a set of 
yords, of which the great misfortune is, that the import of them is confused 
ind indeterminate. I speak only by approximation. To attempt to deter- 

- nine the precise import that has been given them by a hundredth part of 

) ;he authors that have used them, would be an endless task. Would any 
me talk intelligibly on this subject in Latin? let him throw out dolus alto 
gether : let him keep culpa, for the purpose of expressing not the case 

3 tself, but the sentiment that is entertained concerning a case described by 
>ther means. Forintentionality, let him coin a word boldly, and sayinten- 
ionalitas : for unintentionally, non-intentionalitas. For unadvisedness, 

. le has already the word inscitia ; though the words imprudentia, inobser- 
>antia, were it not for the other senses they are used in, would do better : 

or unadvisedness coupled withheedlessness, let him say inscitia culpabilis 

b or unadvisedness without heedlessness, inscitia inculpabilis : for mis-ad- 
isedness coupled with rashness, error cidpabilis, error temerarius, or error 

um temeritate : for mis-advisedness without rashness, error inculpabilis, 

|? nor non-temerarius, or error sine temeritate. 

jj It is not unfrequent likewise to meet with the phrase, malo animo : a 

mrase still more indeterminate, if possible, than any of the former. It 

M eems to have reference either to intentionality, or to consciousness, or to 
he motive, or to the disposition, or to any two or more of these taken 

"5 ogether ; nobody can tell which : these being objects which seem to have 

13* iever hitherto been properly distinguished and defined. 

Of Consciousness. 

ment *. The presence of intention with regard to such or such 
a consequence, and of consciousness with regard to such or such 
a circumstance, of the act, will form so many criminative circum 
stances 2 , cr essential ingredients in the composition of this or 
that offence : applied to other circumstances, consciousness will 
form a ground of aggravation, annexable to the like offence 3 . 
In almost all cases, the absence of intention with regard to 
certain consequences, and the absence of consciousness, or the 
presence of mis-supposal, with regard to certain circumstances, 
will constitute so many grounds of extenuation 4 . 

1 See ch. xiii. [Cases unmeet]. 

2 See B. I. tit. [Circumstances influencing]. 
8 See B. I. tit. [Aggravations]. 

4 See B. I. tit. [Extenuations], 



i. Different senses of the word motive^. 

I. IT is an acknowledged truth, that every kind of act what- Motives, 
ever^djsonsefiuently every kind of offence, is apt to assume a SrecT 
different character, and be attended with different effects, accord- 

jng to the nature of the motive which gives birth to it. This 
makes it requisite to take a view of the several motives by which 
human conduct is liable to be influenced. 

II. By a motive, in the most extensive sense in which the Purely spe- 
word is ever used with reference to a thinking being, is meant tTvShave 
any thing that can contribute to give birth to, or even to pre- SS hSf. t0 
vent, any kind of action. Now the action of a thinking being 

, or only of the mind : and an act of 

- V 

the mind is an act either of the intellectual faculty, or of the 
^- Acts of the intellectual jaculty will sometimes restin the 
understanding merely, without exerting any influence in the pro 
duction of any acts of the will. Motives, which are not of a 
nature to influence any other acts than those, may be styled 
purely speculative, motives, or motives resting in speculation. 
But as to these acts, neither do they exercise any influence over 

I 1 Note by the author, July, 1822. 
> Foratabular simultaneous view of thewhole listof MOTiVES,in conjunc 
tion with the correspondent pleasures and pains, interests and desires, see, 
by the same author, Table of the Springs of Action, &c., with Explanatory 
Notes and Observations. London: 1817, Hunter, St. Paul s Church Yard, 
i 3vo. pp. 32. 

The word inducement has of late presented itself, as being in its significa- 
aon more comprehensive than the word motive, and on some occasions more 



98 Of Motives. [CHAP. 

external acts, or over their consequences, nor consequently over 
any pain or any pleasure that may be in the number of such 
consequences. Now it is only on account of their tendency to 
produce either pain or pleasure, that any acts can be .material.. 
With acts, therefore, that rest purely in the understanding, we 
have not here any concern : nor therefore with any object, if any 
such there be, which, in the character of a motive, can have no 
influence on any other acts than those. 
Motives to in. The motives with which alone we have any coacfiLOu-are 

ill6 Will* -* 

\ such as are of a nature to act upon the will. By a motive then, 
liTthis sense of the word, is to be understood any thing what 
soever, which, by iriflr^encing the will of a sensitive being, is 
supposed to serve as a means of determining him to act^. 01 

[ voluntarily to forbear to act L , upon any occasion. Motives oi 
this sort, in contradistinction to the former, may be styled prac 
tical motives, or motives applying to practice. 
Figurative IV. Owing to the poverty and unsettled state of language 

andunfigur- & . J , , , 

ative senses the word motive is employed indiscriminately to denote tw( 
kinds of objects, which, for the better understanding of the sub 
ject, it is necessary should be distinguished. On some occasion 
it is employed to denote any of those really existing incident 
from whence the act in question is supposed to take its rise! 
The sense it bears on these occasions may be styled its literal o^ 
unfigurative sense. On other occasions it is employed to denot 
a certain fictitious entity, a passion, an affection of the mind, a! 
ideal being which upon the happening of any such incident :j 
considered as operating upon the mind, and prompting it if 
take that course, towards which it is impelled by the influeno 

1 When the effect or tendency of a motive is to determine a man to for 
bear to act, it may seem improper to make use of the term motive: sim 
motive, properly speaking, means that which disposes an object to woi. 
We must however use that improper term, or a term which, though prop. 
enough, is scarce in use, the word determinative. Byway of justification, ? 
at least apology, for the popular usage in this behalf, it may be observe, 
that even forbearance to act, or the negation of motion (that is, of bodir 
motion) supposes an act done, when such forbearance is voluntary. It su- 
poses, to wit, an act of the will, which is as much a positive act, as much 
motion, as any other act of the thinking substance. 

x.] Of Motives. 99 

of such incident. Motives of this class are Avarice, Indolence, 
Benevolence, and so forth ; as we shall see more particularly 
farther on. This latter may be styled the figurative sense of 
the term motive. 

V. As to the real incidents to which the name of motive is Motives in- 
also given, these too are of two very different kinds. They 

may be either, i. The internal perception of any individual lot 
of pleasure or pain, the expectation of which is looked upon as 
calculated to determine you to act in such or such a manner ; as 
the pleasure of acquiring such a sum of money, the pain of 
exerting yourself on such an occasion, and so forth : or, 2. Any 
external event, the happening whereof is regarded as having a 
tendency to bring about the perception of such pleasure or such 
pain ; for instance, the coming up of a lottery ticket, by which 
the possession of the money devolves to you ; or the breaking 
out of a fire in the house you are in, which makes it necessary 
for you to quit it. The former kind of motives may be termed 
interior, or internal : the latter exterior, or external. 

VI. Two other senses of the term motive need also to be dis- Motive in 
tinguished. Motive refers necessarily to action. It is a pleasure, motive in 
pain, or other event, that prompts to action. Motive then, in m 

one sense of the word, must be previous to such event. But, 
for a man to be governed by any motive, he must in every 
case look beyond that event which is called his action ; he must 
look to the consequences of it : and it is only in this way that 
the idea of pleasure, of pain, or of any other event, can give 
birth to it. He must look, therefore, in every case, to some 
event posterior to the act in contemplation : an event which as 
yet exists not, but stands only in prospect. Now, as it is in all 
cases difficult, and in most cases unnecessary, to distinguish 
between objects so intimately connected, as the posterior pos 
sible object which is thus looked forward to, and the present 
existing object or event which takes place upon a man s looking 
forward to the other, they are both of them spoken of under the 
same appellation, motive. To distinguish them, the one first 
mentioned may be termed a motive in prospect, the other a 

H 2 

ioo Of Motives. [CHAP. 

motive in esse : and under each of these denominations will 
come as well exterior as internal motives. A fire breaks out in 
your neighbour s house : you are under apprehension of its ex 
tending to your own : you are apprehensive, that if you stay in 
it, you will be burnt : you accordingly run out of it. This then 
is the act : the others are all motives to it. The event of 
the fire s breaking out in your neighbour s house is an external 
motive, and that in esse : the idea or belief of the proba 
bility of the fire s extending to your own house, that of your 
being burnt if you continue, and the pain you feel at the 
thought of such a catastrophe, are all so many internal events, 
but still in esse : the event of the fire s actually extending to 
your own house, and that of your being actually burnt by it, 
external motives in prospect : the pain you would feel at seeing 
your house a burning, and the pain you would feel while you 
yourself were burning, internal motives in prospect : which 
events, according as the matter turns out, may come to be in 
esse : but then of course they will cease to act as motives. 
Motives im- VII. Of all these motives, which stand nearest to the act, tof 
remdtef and the production of which they all contribute, is that internal; 
motive in esse which consists in the expectation of the internal 
motive in prospect : the pain or uneasiness you feel at the 
thoughts of being burnt 1 . All other motives are more or less. 
remote : the motives in prospect, in proportion as the period at< 
which they are expected to happen is more distant from the 
period at which the act takes place, and consequently later in! 
point of time : the motives in esse, in proportion as they alscf 
are more distant from that period, and consequently earlier ir 
point of time 2 . 

1 Whether it be the expectation of being burnt, or the pain that accom 
panics that expectation, that is the immediate internal motive spoken of 
may be difficult to determine. It may even be questioned, perhaps, whethe: 
they are distinct entities. Both questions, however, seem to be mere ques 
tions of words, and the solution of them altogether immaterial. Even thi 
other kinds of motives, though for some purposes they demand a separat 
consideration, are, however, so intimately allied, that it will often be scare 
practicable, and not always material, to avoid confounding them, as the;: 
have always hitherto been confounded. 

2 Under the term esse must be included as well past existence, with re 


x.] Of Motives. 

VIII. It has already been observed, that with motives of Motives to 
which the influence terminates altogether in the understanding, stSidh?|, r " 
we have nothing here to do. If then, amongst objects that are 52J SJK, 
spoken of as motives with reference to the understanding, there SS8? the 
be any which concern us here, it is only in as far as such objects 
may, through the medium of the understanding, exercise an 
influence over the will. It is in this way, and in this way only, 
that any objects, in virtue of any tendency they may have to 
influence the sentiment of belief, may in a practical sense act in 
the character of motives. Any objects, by tending to induce a 
belief concerning the existence, actual, or probable, of a practical 
motive ; that is, concerning the probability of a motive in pros 
pect, or the existence of a motive in esse ; may exercise an 
influence on the will, and rank with those other motives that 
I have been placed under the name of practical. The pointing 
out of motives such as these, is what we frequently mean when 
i we talk of giving reasons. Your neighbour s house is on fire as 
j before. I observe to you, that at the lower part of your neigh- 
I hour s house is some wood-work, which joins on to yours ; that 
I the flames have caught this wood- work, and so forth; which I do 
! in order to dispose you to believe as I believe, that if you stay 
(in your house much longer you will be burnt. In doing this, 
: then, I suggest motives to your understanding ; which motives, 
by the tendency they have to give birth to or strengthen a pain, 
which operates upon you in the character of an internal motive 
I in esse, join their force, and act as motives upon the will. 

2. No motives either constantly good or constantly bad. 

IX. In all this chain of motives, the principal or original link Nothing can 
< seems to be the last internal motive in prospect : it is to this as amotive 

: Ee ?J; nce , to a 8 iven P er iod, as present. They are equally real, in comparison 
with what is as yet but future. Language is materially deficient, in not 
^ 3nablmg us to distinguish with precision between existence as opposed to 
^ unreality and present existence as opposed to past. The word existence 

a English, and esse, adopted by lawyers from the Latin, have the incon- 
. remence of appearing to confine the existence in question to some single 

?enod considered as being present. 


Of Motives. [CHAP. 

butthe ideas that all the other motives in prospect owe their materiality : and 
the immediately acting motive its existence. This motive in 
prospect, we see, is always some pleasure, or some pain ; some 
pleasure, which the act in question is expected to be a means of 
continuing or producing : some pain which it is expected to be 
a means of discontinuing or preventing. A motive is substan 
tially nothing more than pleasure or pain, operating in a certain 

NO sort of X. Now, pleasure is in itself a good: nay, even setting aside^ 
immunity from pain, the only good : pain is in itself an evil ; ! 
and, indeed, without exception, the only evil; or else the words 
good and evil have no meaning. And this is alike true of every 
sort of pain, and of every sort of pleasure. It follows, there 
fore, immediately and incontestibly, that there is no such thine 
as any sort of motive that is in itself a bad one 1 . 

inaccuracy XI. It is common, however, to speak of actions as proceeding 
from good or bad motives : in which case the motives meant an 
such as are internal. The expression is far from being ail 
accurate one ; and as it is apt to occur in the consideration o| 
almost every kind of offence, it will be requisite to settle th 
precise meaning of it, and observe how far it quadrates with th 
truth of things. 

Any sort of XII. With respect to goodness and badness, as it is wit 

motive may ,. ..... , ,. . . , . -, 

give birth to everything else that is not itself either pain or pleasure, so is 
act s with motives. If they are good or bad, it is only on account 
their effects : good, on account of their tendency to produ 
pleasure, or avert pain : bad, on account of their tendency 1 
produce pain, or avert pleasure. Now the case is, that from or 
and the same motive, and from every kind of motive, may pr< 
ceed actions that are good, others that are bad, and others th;f 

1 Let a man s motive be ill-will ; call it even malice, envy, cruelty ; itp 
still a kind of pleasure that is his motive : the pleasure he takes at t 
thought of the pain which he sees, or expects to see, his adversary under^i. 
Now even this wretched pleasure, taken by itself, is good : it may be fair; 
it may be short : it must at any rate be impure : yet while it lasts, al 
before any bad consequences arrive, it is as good as any other that is rt 
more intense. See ch. iv. [Value]. 

x.] Of Motives. 103 

are indifferent. This we shall proceed to shew with respect to 
all the different kinds of motives, as determined by the various 
kinds of pleasures and pains. 
XIII. Such an analysis, useful as it is, will be found to be a Difficulties 

,,,., -I which stand 

matter of no small difficulty ; owing, in great measure, to a cer- in the way 
tain perversity of structure which prevails more or less through- 
out all languages. To speak of motives, as of anything else, S01 
one must call them by their names. But the misfortune is, that 
it is rare to meet with a motive of which the name expresses 
that and nothing more. Commonly along with the very name 
of the motive, is tacitly involved a proposition imputing to it 
a certain quality; a quality which, in many cases, will appear to 
include that very goodness or badness, concerning which we are 
here inquiring whether, properly speaking, it be or be not im- 
putable to motives. To use the common phrase, in most cases, 
the name of the motive is a word which is employed either only 
in a good sense., or else only in a bad sense. Now, when a word 
is spoken of as being used in a good sense, all that is necessarily 
meant is this : that in conjunction with the idea of the object it 
is put to signify, it conveys an idea of approbation : that is, of 
a pleasure or satisfaction, entertained by the per son who employs 
the term at the thoughts of such object. In like manner, when 
a word is spoken of as being used in a bad sense, all that 
is necessarily meant is this : that, in conjunction with the 
idea of the object it is put to signify, it conveys an idea 
of disapprobation : that is, of a displeasure entertained by 
the person who employs the term at the thoughts of such 
object. Now, the circumstance on which such approbation 
is grounded will, as naturally as any other, be the opinion of 
the goodness of the object in question, as above explained : 
such, at least, it must be, upon the principle of utility : so, 
on the other hand, the circumstance on which any such dis 
approbation is grounded, will, as naturally as any other, be 
the opinion of the badness of the object : such, at least, it 
must be, in as far as the principle of utility is taken for the 

104 Of Motives. [CHAP. 

Now there are certain motives which, unless in a few par 
ticular cases, have scarcely any other name to be expressed 
by but such a word as is used only in a good sense. This is 
the case, for example, with the motives of piety and honour. 
The consequence of this is, that if, in speaking of such a motive, 
a man should have occasion to apply the epithet bad to any 
actions which he mentions as apt to result from it, he must 
appear to be guilty of a contradiction in terms. But the 
names of motives which have scarcely any other name to 
be expressed by, but such a word as is used only in a bad 
sense, are many more 1 . This is the case, for example, with the 
motives of lust and avarice. And accordingly, if in speaking 
of any such motive, a man should have occasion to apply the 
epithets good or indifferent to any actions which he mentions as 
apt to result from it, he must here also appear to be guilty of 
a similar contradiction 2 . 

This perverse association of ideas cannot, it is evident, but 
throw great difficulties in the way of the inquiry now before us. 
Confining himself to the language most in use, a man can scarce 
avoid running, in appearance, into perpetual contradictions. His 
propositions will appear, on the one hand, repugnant to truth 
and on the other hand, adverse to utility. As paradoxes, they 
will excite contempt : as mischievous paradoxes, indignation 
For the truths he labours to convey, however important, anc 
however salutary, his reader is never the better : and he himselj 
is much the worse. To obviate this inconvenience, completely, 
he has but this one unpleasant remedy ; to lay aside the old 
phraseology and invent a new one. Happy the man whose 

. l For the reason, see chap. xi. [Dispositions], par. xvii. note. 

2 To this imperfection of language, and nothing more, are to be attributed, 
in great measure, the violent clamours that have from time to time been 
raised against those ingenious moralists, who, travelling out of the beaten 
tract of speculation, have found more or less difficulty in disentangling 
themselves from the shackles of ordinary language : such as Eochef oucault, 
Mandeyille and Helvetius. To the unsoundness of their opinions, and, 
with still greater injustice, to the corruption of their hearts, was often im 
puted, what was most commonly owing either to a want of skill, in matters 
of language on the part of the author, or a want of discernment, possibly 
now and then in some instances a want of probity, on the part of the com 

x ] Of Motives. 105 

language is ductile enough to permit him this resource. To 
palliate the inconvenience, where that method of obviating it is 
impracticable, he has nothing left for it but to enter into a long 
discussion, to state the whole matter at large, to confess, that 
for the sake of promoting the purposes, he has violated the 
established laws of language, and to throw himself upon the 
mercy of his readers \ 

3. Catalogue of motives corresponding to that of Pleasures 
and Pains. 

XIV. From the pleasures of the senses, considered in the Physical de- 
gross, results the motive which, in a neutral sense, maybe termed ^n 
physical desire : in a bad sense, it is termed sensuality. Name Sf 

used in a good sense it has none. Of this, nothing can be deter- generaL 
mined, till it be considered separately, with reference to the 
several species of pleasures to which it corresponds. 

XV. In particular, then, to the pleasures of the taste or palate The motive 
corresponds a motive, which in a neutral sense having received in^ito thS d ~ 
no name that can serve to express it in all cases, can only 
termed,by circumlocution, the love of thepleasures of the palate. 

In particular cases it is styled hunger : in others, thirst 2 . The 
love of good cheer expresses this motive, but seems to go beyond : 

1 Happily, language is not always so intractable, but that by making use 
of two words instead of one, a man may avoid the inconvenience of fabri 
cating words that are absolutely new. Thus instead of the word lust, by 
putting together two words in common use, he may frame the neutral ex 
pression, sexual desire : instead of the word avarice, by putting together 
two other words also in common use, he may frame the neutral expression, 
pecuniary interest. This, accordingly, is the course which I have taken. 
In these instances, indeed, even the combination is not novel : the only 
novelty there is consists in the steady adherence to the one neutral ex 
pression, rejecting altogether the terms, of which the import is infected by 
adventitious and unsuitable ideas. 

In the catalogue of motives, corresponding to the several sorts of pains 
and pleasures, I have inserted such as have occurred to me. I cannot 
pretend to warrant it complete. To make sure of rendering it so, the only 
way would be, to turn over the dictionary from beginning to end: an opera 
tion which, in a view to perfection, would be necessary for more purposes 
than this. See B. I. tit. [Defamation], and Append, tit. [Composition]. 

Hunger and thirst, considered in the light of motives, import not so 
much the desire of a particular kind of pleasure, as the desire of removing 
a positive kind of pain. They do not extend to the desire of that kind of 
pleasure which depends on the choice of foods and liquors. 

io6 Of Motives. [CHAP. 

intimating, that the pleasure is to be partaken of in company, 
and involving a kind of sympathy. In a bad sense, it is styled 
in some cases greediness, voraciousness, gluttony : in others, 
principally when applied to children, lickerishness. It may in 
some cases also be represented by the word daintiness. Name 
used in a good sense it has none. i. A boy, who does not want 
for victuals, steals a cake out of a pastry-cook s shop, and eats it. 
In this case his motive will be universally deemed a bad one : 
and if it be asked what it is, it may be answered, perhaps, licker 
ishness. 2. A boy buys a cake out of a pastry-cook s shop, and 
eats it. In this case his motive can scarcely be looked upon as 
either good or bad, unless his master should be out of humou 
with him ; and then perhaps he may call it lickerishness, i 
before. In both cases, however, his motive is the same. It 
neither more nor less than the motive corresponding to th 
pleasures of the palate 1 . 
Sexual de- XVI. To the pleasures of the sexual sense corresponds th 
spending to motive which, in a neutral sense, may be termed sexual desire 
of the sexual In a bad sense, it is spoken of under the name of lasciviousness 
and a variety of other names of reprobation. Name used in 
good sense it has none 2 . 

i. A man ravishes a virgin. In this case the motive is, with 
out scruple, termed by the name of lust, lasciviousness, and s< 
forth ; and is universally looked upon as a bad one. 2. Th< 
same man, at another time, exercises the rights of marriage wit 
his wife. In this case the motive is accounted, perhaps, a gooc 
one, or at least indifferent : and here people would scruple t< 
call it by any of those names. In both cases, however, th 

1 It will not be worth while, in every case, to give an instance in whic 
the action may be indifferent : if good as well as bad actions may resu] 
from the same motive, it is easy to conceive, that also may be indifferent. 

2 Love indeed includes sometimes this idea: but then it can neve 
answer the purpose of exhibiting it separately: since there are thre 
motives, at least, that may all of them be included in it, besides this : tt 
love of beauty corresponding to the pleasures of the eye, and the motivt 
corresponding to those of amity and benevolence. We speak of the love < 
children, of the love of parents, of the love of God. These pious uses pr< 
tect the appellation, and preserve it from the ignominy poured forth upc 
its profane associates. Even sensual love would not answer the purpose 
since that would include the love of beauty. 

x.] Of Motives. 107 

motive may be precisely the same. In both cases it may be 
neither more nor less than sexual desire. 

XVII. To the pleasures of curiosity corresponds the motive Curiosity, 
known by the same name : and which may be otherwise called spending to 
the love of novelty, or the love of experiment ; and, on parti- su ?es of" 
cular occasions, sport, and sometimes play. 

I. A boy, in order to divert himself, reads an improving book : 
the motive is accounted, perhaps, a good one : at any rate not a 
bad one. 2. He sets his top a spinning : the motive is deemed, 
at any rate, not a bad one. 3. He sets loose a mad ox among 
a crowd ; his motive is now, perhaps, termed an abominable one. 
Yet in all three cases the motive may be the very same : it may 
be neither more nor less than curiosity. 

XVIII. As to the other pleasures of sense they are of t 

little consequence to have given any separate denominations to sense. 
the corresponding motives. 

XIX. To the pleasures of wealth corresponds the sort of motive ? e t ry 
which, in a neutral sense, may be termed pecuniary interest : in ^jpiea- 
a bad sense, it is termed, in some cases, avarice, covetousness, wealth, 
rapacity, or lucre : in other cases, niggardliness : in a good sense, 

but only in particular cases, economy and frugality ; and in some 
cases the word industry may be applied to it : in a sense nearly 
indifferent, but rather bad than otherwise, it is styled, though 
only in particular cases, parsimony. 

i. For money you gratify a man s hatred, by putting his 
adversary to death. 2. For money you plough his field for 
him. In the first case your motive is termed lucre, and is ac 
counted corrupt and abominable : and in the second, for want 
of a proper appellation, it is styled industry ; and is looked upon 
as innocent at least, if not meritorious. Yet the motive is in 
both cases precisely the same : it is neither more nor less than 
pecuniary interest. 

XX. The pleasures of skill are neither distinct enough, nor of None to the 

, pleasures of 

consequence enough, to have given any name to the correspond- skill, 
ing motive. 

XXI. To the pleasures of amity corresponds a motive which, To the plea- 

io8 Of Motives. [CHAP. 

sures of in a neutral sense, may be termed the desire of ingratiating one s 
desire of self. In a bad sense it is in certain cases styled servility : in a 

ingratiating . .. . . J 

one s self, good sense it has no name that is peculiar to it : in the cases in 
which it has been looked on with a favourable eye, it has seldom 
been distinguished from the motive of sympathy or benevolence, 
with which, in such cases, it is commonly associated. 

I. To acquire the affections of a woman before marriage, to 
preserve them afterwards, you do every thing, that is consistent 
with other duties, to make her happy : in this case your motive 
is looked upon as laudable, though there is no name for it. 2. 
For the same purpose, you poison a woman with whom she is at 
enmity : in this case your motive is looked upon as abominable, 
though still there is no name for it. 3. To acquire or preserve 
the favour of a man who is richer or more powerful than your 
self, you make yourself subservient to his pleasures. Let them 
even be lawful pleasures, if people choose to attribute your be- 
haviour to this motive, you will not get them to find any other 
name for it than servility. Yet in all three cases the motive is 
the same : it is neither more nor less than the desire of ingra 
tiating yourself. 

TO the plea- XXII. To the pleasures of the moral sanction, or, as they may 

surcs or ft _ , 

good name, otherwise be called, the pleasures of a good name, corresponds a 
reputation, motive which, in a neutral sense, has scarcely yet obtained any 
adequate appellative. It may be styled, the love of reputation. 
It is nearly related to the motive last preceding : being neither 
more nor less than the desire of ingratiating one s self with, or, 
as in this case we should rather say, of recommending one s self 
to. the world at large. In a good sense, it is termed honour, or 
the sense of honour : or rather, the word honour is introduced 
somehow or other upon the occasion of its beingbrought to view : 
for in strictness the word honour is put rather to signify that 
imaginary object, which a man is spoken of as possessing upon 
the occasion of his obtaining a conspicuous share of the pleasures 
that are in question. In particular cases, it is styled the love of 
glory. In a bad sense, it is styled, in some cases, false honour : 
in others, pride ; in others, vanity. In a sense not decidedly 

x.] Of Motives. 109 

bad, but rather bad than otherwise, ambition. In an indifferent 
sense, in some cases, the love of fame : in others, the sense of 
shame. And, as the pleasures belonging to the moral sanction 
run undistinguishably into the pains derived from the same 
source l , it may also be styled, in some cases, the fear of dis 
honour, the fear of disgrace, the fear of infamy, the fear of 
ignominy, or the fear of shame. 

i. You have received an affront from a man : according to the 
custom of the country, in order, on the one hand, to save your 
self from the shame of being thought to bear it patiently 2 ; on 

1 See Chap. vi. [Pleasures and Pains], par. xxiv. note. 

2 A man s bearing an affront patiently, that is, without taking this 
method of doing what is called wiping it off, is thought to import one or 
other of two things : either that he does not possess that sensibility to the 
pleasures and pains of the moral sanction, which, in order to render himself 
a respectable member of society, a man ought to possess : or, that he does 
not possess courage enough to stake his life for the chance of gratifying 
that resentment which a proper sense of the value of those pleasures and 
those pains it is thought would not fail to inspire. True it is, that there 
are divers other motives, by any of which the same conduct might equally 
be produced : the motives corresponding to the religious sanction, and the 
motives that come under the head of benevolence. Piety towards God, the 
practice in question being generally looked upon as repugnant to the dic 
tates of the religious sanction : sympathy for your antagonist himself , whose 
life would be put to hazard at the same time with your own ; sympathy 
for his connexions ; the persons who are dependent on him in the way of 
support, or connected with him in the way of sympathy : sympathy for 
your own connexions : and even sympathy for the public, in cases where 
the man is such that the public appears to have a material interest in his 
life. But in comparison with the love of life, the influence of the religious 
sanction is known to be in general but weak : especially among people of 
those classes who are here in question : a sure proof of which is the preva 
lence of this very custom. Where it is so strong as to preponderate, it is so 
rare, that, perhaps, it gives a man a place in the calendar : and, at any 
rate, exalts him to the rank of martyr. Moreover, the instances in which 
either private benevolence or public spirit predominate over the love of life, 
will also naturally be but rare : and, owing to the general propensity to 
detraction, it will also be much rarer for them to be thought to do so. 
Now, when three or more motives, any one of them capable of producing a 
given mode of conduct, apply at once, that which appears to be the most 
powerful, is .that which will of course be deemed to have actually done the 
most : and, as the bulk of mankind, on this as on other occasions, are dis 
posed to decide peremptorily upon superficial estimates, it will generally be 
looked upon as having done the whole. 

The consequence is, that when a man of a certain rank forbears to take 
this chance of revenging an affront, his conduct will, by most people, be 
imputed to the love of life : which, when it predominates over the love of 
reputation, is, by a not unsalutary association of ideas, stigmatized with the 
reproachful name of cowardice. 

no Of Motives. [CHAP. 

the other hand, to obtain the reputation of courage ; you chal 
lenge him to fight with mortal weapons. In this case your 
motive will by some people be accounted laudable, and styled 
honour : by others it will be accounted blameable, and these, if 
they call it honour, will prefix an epithet of improbation to it, 
and call it false honour. 2. In order to obtain a post of rank 
and dignity, and thereby to increase the respects paid you by 
the public, you bribe the electors who are to confer it, or the 
judge before whom the title to it is in dispute. In this case 
your motive is commonly accounted corrupt and abominable, and 
is styled, perhaps, by some such name as dishonest or corrupt 
ambition, as there is no single name for it. 3. In order to 
obtain the good-will of the public, you bestow a large sum in i 
works of private charity or public utility. In this case people 
will be apt not to agree about your motive. Your enemies will 
put a bad colour upon it, and call it ostentation : your friends, \ 
to save you from this reproach, will choose to impute your con- ) 
duct not to this motive but to some other : such as that of i 
charity (the denomination in this case given to private sym-l 
pathy) or that of public spirit. 4. A king, for the sake of! 
gaining the admiration annexed to the name of conqueror (wei 
will suppose power and resentment out of the question) engages! 
his kingdom in a bloody war. His motive, by the multitude 
(whose sympathy for millions is easily overborne by the pleasure! 
which their imagination finds in gaping at any novelty they 
observe in the conduct of a single person) is deemed an ad-( 
mirable one. Men of feeling and reflection, who disapprove o:j 
the dominion exercised by this motive on this occasion, withouj 
always perceiving that it is the same motive which in other in! 
stances meets with their approbation, deem it an abominabLIt 
one ; and because the multitude, who are the manufacturers o 
language, have not given them a simple name to call it by, the;! 
will call it by some such compound name as the love of fals 
glory or false ambition. Yet in all four cases the motive is th 
same : it is neither more nor less than the love of reputation 
TO the plea- XXIII. To the pleasures of power corresponds the motiv 

x.] Of Motives. 1 1 1 

which, in a neutral sense, may bejbermed the love of power, sures of 
People, who are out of humour with it sometim es, call it the lust FovTof 
of power. In a good sense, it is scarcely provided with a name. 
In certain cases this motive, as well as the love of reputation, 
are confounded under the same name, ambition. This is not to 
be wondered at, considering the intimate connexion there is be 
tween the two motives in many cases : since it commonly hap 
pens, that the same object which affords the one sort of pleasure, 
affords the other sort at the same time : for instance, offices, 
which are at once posts of honour and places of trust : and since 
at any rate reputation is the road to power. 

I. If, in order to gain a place in administration, you poison 
the man who occupies it. 2. If, in the same view, you propose 
a salutary plan for the advancement of the public welfare; your 
motive is in both cases the same. Yet in the first case it is ac 
counted criminal and abominable : in the second case allowable, 
and even laudable. 

XXIV. To the pleasures as well as to the pains of the re- The native 
ligious sanction corresponds a motive which has, strictly speak- there1igious 
ing, no perfectly neutral name applicable to all cases, unless the sai 
word religion be admitted in this character : though the word 
religion, strictly speaking, seems to mean not so much the mo 
tive itself, as a kind of fictitious personage, by whom the motive 
is supposed to be created, or an assemblage of acts, supposed to 
be dictated by that personage : nor does it seem to be completely 
settled into a neutral sense. In the same sense it is also, in 
some cases, styled religious zeal : in other cases, the fear of God. 
The love of God, though commonly contrasted with the fear of 
God, does not come strictly under this head. It coincides 
properly with a motive of a different denomination; viz. a kind 
of sympathy or good- will, which has the Deity for its object. 
In a good sense, it is styled devotion, piety, and pious zeal. In 
a bad sense, it is styled, in some cases, superstition, or super 
stitious zeal : in other cases, fanaticism, or fanatic zeal : in a 
sensenot decidedly bad, because not appropriated to this motive, 
enthusiasm, or enthusiastic zeal. 

ii2 Of Motives. [CHAP. 

lo In order to obtain the favour of the Supreme Being, a man 
assassinates his lawful sovereign. In this case the motive is now 
almost universally looked upon as abominable, and is termed 
fanaticism : formerly it was by great numbers accounted laud 
able, and was by them called pious zeal. 2. In the same view, 
a man lashes himself with thongs. In this case, in yonder house, 
the motive is accounted laudable, and is called pious zeal : in the 
next house it is deemed contemptible, and called superstition. 
3. In the same view, a man eats a piece of bread (or at least 
what to external appearance is a piece of bread) with certain 
ceremonies. In this case, in yonder house, his motive is looked 
upon as laudable, and is styled piety and devotion : in the next 
house it is deemed abominable, and styled superstition, as be 
fore : perhaps even it is absurdly styled impiety. 4. In the same 
view, a man holds a cow by the tail while he is dying. On the 
Thames the motive would in this case be deemed contemptible, 
and called superstition. On the Ganges it is deemed meritorious, 
and called piety. 5. In the same view, a man bestows a large 
sum in works of charity, or public utility. In this case the j 
motive is styled laudable, by those at least to whom the works ! 
in question appear to come under this description : and by these i 
at least it would be styled piety. Yet in all these cases the 
motive is precisely the same : it is neither more nor less than 
the motive belonging to the religious sanction \ 

&ctothe XXV. To the pleasures of sympathy corresponds the motive 
pleasures of which, in a neutral sense, is termed good- will. The word sym-i 
pathy may also be used on this occasion : though the sense off 
it seems to be rather more extensive. In a good sense, it isl 
styled benevolence : and in certain cases, philanthropy ; and, in; 
a figurative way,brotherly love ; in others, humanity; in others.! 

1 I am aware, or at least I hope, that people in general, when they set 
the matter thus stated, will be ready to acknowledge, that the motive ii 
these cases, whatever be the tendency of the acts which it produces, is no 
a bad one : but this will not render it the less true, that hitherto, in popu 
lar discourse it has been common for men to speak of acts, which the] 
could not but acknowledge to have originated from this source, as proceed 
ing from a bad motive. The same observation will apply to many of th 
other cases. 

x.] Of Motives. 113 

charity ; in others, pity and compassion ; in others, mercy ; in 
others, gratitude; in others, tenderness ; in others, patriotism; 
in others, public spirit. Love is also employed in this as in so 
many other senses. In a bad sense, it has no name applicable 
to it in all cases : in particular cases it is styled partiality. 
The word zeal, with certain epithets prefixed to it, might also be 
employed sometimes on this occasion, though the sense of it be 
more extensive ; applying sometimes to ill as well as to good 
will. It is thus we speak of party zeal, national zeal, and 
public zeal. The word attachment is also used with the like 
epithets : we also say family-attachment. The French ex 
pression, esprit de corps, for which as yet there seems to be 
scarcely any name in English, might be rendered, in some cases, 
though rather inadequately, by the terms corporation spirit, 
corporation attachment, or corporation zeal. 

i. A man who has set a town on fire is apprehended and 
committed : out of regard or compassion for him, you help him 
to break prison. In this case the generality of people will pro 
bably scarcely know whether to condemn your motive or to 
applaud it : those who condemn your conduct, will be disposed 
ratherto impute it to some other motive : if they style it benevo 
lence or compassion, they will be for prefixing an epithet, and 
calling it false benevolence or false compassion 1 . 2. The man is 
taken again, and is put upon his trial : to save him you swear 
falsely in his favour. People, who would not call your motive a 
bad one before, will perhaps call it so now. 3. A man is at law 
with you about an estate : he has no right to it : the judge 
knows this,yet, having an esteem or affection for your adversary, 

1 Among the Greeks, perhaps the motive, and the conduct it gave birth 
to, would, in such a case, have been rather approved than disapproved of. 
It seems to have been deemed an act of heroism on the part of Hercules, 
to have delivered his friend Theseus from hell : though divine justice, 
which held him there, should naturally have been regarded as being at 
least upon a footing with human justice. But to divine justice, even when 
acknowledged under that character, the respect paid at that time of day 
does not seem to have been very profound, or well-settled : at present, the 
respect paid to it is profound and settled enough, though the name of it is 
but too often applied to dictates which could have had no other origin than 
the worst sort of human caprice. 


1 14 Of Motives. [CHAP. 

adjudges it to him. In this case the motive is by every body 
deemed abominable, and is termed injustice and partiality. 
4. You detect a statesman in receiving bribes : out of regard to 
the public interest, you give information of it, and prosecute 
him. In this case, by all who acknowledge your conduct to have 
originated from this motive, your motive will be deemed a laud 
able one, and styled public spirit. But his friends and adherents 
will not choose to account for your conduct in any such manner: 
they will rather attribute it to party enmity. 5. You find a man 
on the point of starving : you relieve him ; and save his life. In 
this case your motive will by every body be accounted laudable, 
anditwillbetermedcompassion, pity, charity, benevolence. Yet 
in all these cases the motive is the same : it is neither more nor i 
less than the motive of good-will. 

iii-wiii, &c. XXVI. To the pleasures of malevolence, or antipathy, corre- 
sures ef an- spends the motive which, in a neutral sense, is termed antipathy I 
or displeasure : and, in particular cases, dislike, aversion, abhor- 1 
rence, and indignation : in a neutral sense, or perhaps a sense 
leaning a little to the bad side, ill-will : and, in particular cases,! 
anger, wrath, and enmity. In a bad sense it is styled, in different 
cases, wrath, spleen, ill-humour, hatred, malice, rancour, rage,. 
fury, cruelty, tyranny, envy, jealousy, revenge, misanthropy, and 
by other names, which it is hardly worth while to endeavour tcj 
collect *. Like good-will, it is used with epithets expressive o< 
the persons who are the objects of the affection. Hence we heai> 
of party enmity, party rage, and so forth. In a good sense ther<; 
seems to be no single name for it. In compound expressions i 
may be spoken of in such a sense, by epithets, such as just am 
laudable, prefixed to words that are used in a neutral or nearly 
neutral sense. 

i. You rob a man : he prosecutes you, and gets you punished 

1 Here, as elsewhere, it may be observed, that the same words which ar 
mentioned as names of motives, are also many of them names of passion: 
appetites, and affections : fictitious entities, which are framed only by cor 
sidering pleasures or pains in some particular point of view. Some of thei 
are also names of moral qualities. This branch of nomenclature is rernarl 
ably entangled : to unravel it completely would take up a whole volume 
not a syllable of which would belong properly to the present design. 

x.] Of Motives. 115 

out of resentment you set upon him, and hang him with your 
own hands. In this case your motive will universally be deemed 
detestable, and will be called malice, cruelty, revenge, and so 
forth. 2. A man has stolen a little money from you : out of 
resentment you prosecute him, and get him hanged by course of 
law. In this case people will probably be a little divided in 
their opinions about your motive : your friends will deem it a 
laudable one, and call it a just or laudable resentment : your 
enemies will perhaps be disposed to deem it blameable, and call 
it cruelty, malice, revenge, and so forth: to obviate which, your 
friends will try perhaps to change the motive, and call it public 
spirit. 3. A man has murdered your father: out of resentment 
you prosecute him, and get him put to death in course of law. 
In this case your motive will be universally deemed a laudable 
one, and styled, as before, a just or laudable resentment : and 
your friends, in order to bring forward the more amiable prin 
ciple from which the malevolent one, which was your immediate 
motive, took its rise, will be for keeping the latter out of sight, 
speaking of the former only, under some such name as filial 
piety. Yet in all these cases the motive is the same : it is 
neither more nor less than the motive of ill-will. 
XXVII. To the several sorts of pains, or at least to all such seif-preser- 

, . . . , T j , vation, to 

of them as are conceived to subsist in an intense degree, and to the several 
death, which, as far as we can perceive, is the termination of all pa i ns . 
the pleasures, as well as all the pains we are acquainted with, 
corresponds the motive, which in a neutral sense is styled, in 
general, self -preservation: the desire of preserving one s self from 
the pain or evil in question. Now in many instances the desire 
of pleasure, and the sense of pain, run into one another undis- 
tinguishably. Self-preservation, therefore, where the degree of 
the pain which it corresponds to is but slight will scarcely be 
distinguishable, by any precise line, from the motives corre 
sponding to the several sorts of pleasures. Thus in the case of 
the pains of hunger and thirst : physical want will in many cases 
be scarcely distinguishable from physical desire. In some cases 
it is styled, still in a neutral sense, self-defence. Between the 


n6 Of Motives. [CHAP. 

pleasures and the pains of the moral and religious sanctions, 
and consequently of the motives that correspond to them, as 
like wise between the pleasures of amity, and the pains of enmity, 
this want of boundaries has already been taken notice of 1 . The 
case is the same between the pleasures of wealth, and the pains 
of privation corresponding to those pleasures. There are many 
cases, therefore, in which it will be difficult to distinguish the 
motive of self-preservation from pecuniary interest, from the 
desire of ingratiating one s self, from the love of reputation, and 
from religious hope : in which cases, those more specific and 
explicit names will naturally be preferred to this general and 
inexplicit one. There are also a multitude of compound 
names, which either are already in use, or might be devised, to 
distinguish the specific branches of the motive of self-preserva 
tion from those several motives of a pleasurable origin : such as 
the fear of poverty, the fear of losing such or such a man s 
regard, the fear of shame, and the fear of God. Moreover, to 
the evil of death corresponds, in a neutral sense, the love of 
life ; in a bad sense, cowardice : which corresponds also to the 
pains of the senses, at least when considered as subsisting in an 
acute degree. There seems to be no name for the love of life 
that has a good sense ; unless it be the vague and general name 
of prudence. 

i. To save yourself from being hanged, pilloried, imprisoned, 
or fined, you poison the only person who can give evidence 
against you. In this case your motive will universally be styled 
abominable : but as the term self-preservation has no bad sense, 
people will not care to make this use of it : they will be apt 
rather to change the motive, and call it malice. 2. A woman, 
having been just delivered of an illegitimate child, in order to 
save herself from shame, destroys the child, or abandons it. In 
this case, also, people will call the motive a bad one, and, not 
caring to speak of it under a neutral name, they will be apt to 
change the motive, and call it by some such name as cruelty. 
3. To save the expense of a halfpenny, you suffer a man, whom 
1 See ch. v. [Pleasures and Pains], par. xxiv, xxv. 

x.] Of Motives. 117 

you could preserve at that expense, to perish with want, before 
your eyes. In this case your motive will be universally deemed 
an abominable one ; and, to avoid calling it by so indulgent a 
name as self-preservation, people will be apt to call it avarice 
and niggardliness, with which indeed in this case it indistin- 
guishably coincides : for the sake of finding a more reproachful 
appellation, they will be apt likewise to change the motive, and 
term it cruelty. 4. To put an end to the pain of hunger, you 
steal a loaf of bread. In this case your motive will scarcely, 
perhaps, be deemed a very bad one ; and, in order to express 
more indulgence for it, people will be apt to find a stronger 
name for it than self-preservation, terming it necessity. 5. To 
save yourself from drowning, you beat off an innocent man who 
has got hold of the same plank. In this case your motive will 
in general be deemed neither good nor bad, and it will be termed 
self-preservation, or necessity, or the love of life. 6. To save 
your life from a gang of robbers, you kill them in the conflict. 
In this case the motive may, perhaps, be deemed rather laudable 
than otherwise, and, besides self-preservation, is styled also self- 
defence. 7. A soldier is sent out upon a party against a weaker 
party of the enemy : before he gets up with them, to save his 
life, he runs away. In this case the motive will universally be 
deemed a contemptible one, and will be called cowardice. Yet 
in all these various cases, the motive is still the same. It is 
neither more nor less than self-preservation. 

XXVIII. In particular, to the pains of exertion corresponds TO the pains 
the motive, which, in a neutral sense, may be termed the love the love of 
of ease, or by a longer circumlocution, the desire of avoiding ease 
trouble. In a bad sense, it is termed indolence 1 . It seems to 
have no name that carries with it a good sense. 

i. To save the trouble of taking care of it, a parent leaves his 
child to perish. In this case the motive will be deemed an 

1 It may seem odd at first sight to speak of the love of ease as giving 
birth to action : but exertion is as natural an effect of the love of ease as 
inaction is, when a smaller degree of exertion promises to exempt a man 
from a greater. 

n8 Of Motives. [CHAP. 

abominable one, and, because indolence will seem too mild a 
name for it, the motive will, perhaps, be changed, and spoken 
of under some such term as cruelty. 2. To save yourself from 
an illegal slavery, you make your escape. In this case the 
motive will be deemed certainly not a bad one : and, because 
indolence, or even the love of ease, will be thought too unfa 
vourable a name for it, it will, perhaps, be styled the love of 
liberty. 3. A mechanic, in order to save his labour, makes an 
improvement in his machinery. In this case, people will look 
upon his motive as a good one ; and finding no name for it that 
carries a good sense, they will be disposed to keep the motive 
out of sight : they will speak rather of his ingenuity, than of 
the motive which was the means of his manifesting that quality. 
Yet in all these cases the motive is the same : it is neither more 
nor less than the love of ease. 
Motives can XXIX. It appears then that there is no such thing as any 

only be bad , . f. t "U J -j. ix 

with refer- sort of motive which is a bad one in itself : nor, consequently, 
most fre- 16 any such thing as a sort of motive, which in itself is exclusively 
piexiono 1 ? a good one. And as to their effects, it appears too that these 1 
s are sometimes bad, at other times either indifferent or good : 
and this appears to be the case with every sort of motive. // 
any sort of motive then is either good or bad on the score of its \ 
effects, this is the case only on individual occasions, and with in- i 
dividual motives ; and this is the case with one sort of motive 
as well as with another. If any sort of motive then can, in con 
sideration of its effects, be termed with any propriety a bad one, ( 
it can only be with reference to the balance of all the effects it 
may have had of both kinds within a given period, that is, of 
its most usual tendency. 

HOW^MS XXX. What then ? (it will be said) are not lust, cruelty, 
fw v fust 8u ava avar ^ ce ^ a ^ motives ? Is there so much as any one individual 
rice, &c. are occasion, in which motives like these can be otherwise than bad ? 


bad. No, certainly : and yet the proposition, that there is no one 

sort of motive but what will on many occasions be a good one, 
is nevertheless true. The fact is, that these are names which, if 
properly applied, are never applied but in the cases where the 

x.] Of Motives. 119 

motives they signify happen to be bad. The names of these 
motives, considered apart from their effects, are sexual desire, 
displeasure, and pecuniary interest. To sexual desire, when the 
effects of it are looked upon as bad, is given the name of lust. 
Now lust is always a bad motive. Why? Because if the case 
be such, that the effects of the motive are not bad, it does not 
go, or at least ought not to go, by the name of lust. The case 
is, then, that when I say, Lust is a bad motive, it is a propo 
sition that merely concerns the import of the word lust ; and 
which would be false if transferred to the other word used for 
the same motive, sexual desire. Hence we see the emptiness of 
all those rhapsodies of common-place morality, which consist in 
the taking of such names as lust, cruelty, and avarice, and 
branding them with marks of reprobation : applied to the thing, 
they are false ; applied to the name, they are true indeed, but 
nugatory. Would you do a real service to mankind, show them 
the cases in which sexual desire merits the name of lust ; dis 
pleasure, that of cruelty; and pecuniary interest, that of avarice. 

XXXI. If it were necessary to apply such denominations as Under the 

. above re- 

good, bad, and indifferent to motives, they might be classed in strictions, 

. _ motives may 

the following manner, in consideration of the most frequent com- be distin- 
plexion of their effects. In the class of good motives might be good, bad, 
placed the articles of, I. Good- will. 2. Love of reputation, fei-ent or" 
3. Desire of amity. And, 4. Keligion. In the class of bad ne 
motives, 5. Displeasure. In the class of neutral or indifferent 
motives, 6. Physical desire. 7. Pecuniary interest. 8. Love 
of power. 9. Self-preservation ; as including the fear of the 
pains of the senses, the love of ease, and the love of life. 

XXXII. This method of arrangement, however, cannot butl 
be imperfect ; and the nomenclature belonging to it is in danger d 
of being fallacious. For by what method of investigation can a 
man be assured, that with regard to the motives ranked under 
the name of good, the good effects they have had, from the be 
ginning of the world, have, in each of the four species com 
prised under this name, been superior to the bad ? still more 
difficulty would a man find in assuring himself, that with regard 

Of Motives* 


?ndfviduai in 

to those which are ranked under the name of neutral or indif 
ferent, the effects they have had have exactly balanced each 
other, the value of the good being neither greater nor less than 
that of the bad. It is to be considered, that the interests of the 
person himself can no more be left out of the estimate, than 
those of the rest of the community. For what would become of 
the species, if it were not for the motives of hunger and thirst, 
sexual desire, the fear of pain, and the love of life ? Nor in the 
actual constitution of human nature is the motive of displeasure 
less necessary, perhaps, than any of the others : although a 
system, in which the business of life might be carried on without 
it, might possibly be conceived. It seems, therefore, that they 
could scarcely, without great danger of mistakes, be distin 
guished in this manner even with reference to each other. 

XXXIII. The only way, it should seem, in which a motive 
can with safety and propriety be styled good or bad, is with 

or bad g d re ^ erence to its effects in each individual instance ; and princi 
pally from the intention it gives birth to : from which arise, as 
will be shown hereafter, the most material part of its effects. 
A motive is good, when the intention it gives birth to is a good 
one ; bad, when the intention is a bad one : and an intention is 
good or bad, according to the material consequences that are the 
objects of it. So far is it from the goodness of the intention s 
being to be known only from the species of the motive. But 
from one and the same motive, as we have seen, may result in 
tentions of every sort of complexion whatsoever. This circum 
stance, therefore, can afford no clue for the arrangement of the 
several sorts of motives. 

XXXIV. A more commodious method, therefore, it should 
seem, would be to distribute them according to the influence 
which they appear to have on the interests of the other members 
of the community, laying those of the party himself out of the 
question : to wit, according to the tendency which they appear to. 
have to unite, or disunite, his interests and theirs. On this plan 
they may be distinguished into social, dissocial, and self -regard 
ing. In the social class may be reckoned, i. Good- will. 2. Lov( 

dissocia] a1 
re d ardiii 

x.] Of Motives. 121 

of reputation. 3. Desire of amity. 4. Keligion. In the dis 
social may be placed, 5. Displeasure. In the self -regarding 
class, 6. Physical desire. 7. Pecuniary interest. 8. Love of 
power. 9. Self-preservation ; as including the fear of the pains 
of the senses, the love of ease, and the love of life. 

XXXV. With respect to the motives that have been termed social, 
social, if any farther distinction should be of use, to that of aodaEjm/ 
good- will alone may be applied the epithet of purely-social ; se: 
while the love of reputation, the desire of amity, and the motive 

of religion, may together be comprised under the division of 
semi-social : the social tendency being much more constant and 
unequivocal in the former than in any of the three latter. 
Indeed these last, social as they may be termed, are self-regard 
ing at the same time 1 . 

4. Order of pre-eminence among motives. 

XXXVI. Of all these sorts of motives, good-will is that of The dictates 
which the dictates 2 , taken in a general view, are surest of coin- anfthe WlU 
ciding with those of the principle of utility. For the dictates ; 

of utility are neither more nor less than the dictates of the mosti 
extensive 3 and enlightened (that is well-advised*) benevolence. 
The dictates of the other motives may be conformable to those 
of utility, or repugnant, as it may happen. 

XXXVII. In this, however, it is taken for granted, that in Yet do not 
the case in question the dictates of benevolence are not contra- m 
dieted by those of a more extensive, that is enlarged, benevo 
lence. Now when the dictates of benevolence, as respecting the 
interests of a certain set of persons, are repugnant to the dictates 

1 Religion, says the pious Addison, somewhere in the Spectator, is the 
highest species of self-love. 

2 When a man is supposed to be prompted by any motive to engage, or Laws and die- 
not to engage, in such or such an action, it may be of use, for the conve- t a a s t f s s s ^ ce f ived 
nience of discourse, to speak of such motive as giving birth to an imaginary motives!* 
kind of law or dictate, injoining him to engage, or not to engage, in it \ 

8 See ch. iv. [Value], and ch. vi. [Sensibility], par. xxi. 
4 See ch. ix. [Consciousness]. 

1 See ch. i. 

123 Of Motives. [CHAP. 

of the same motive, as respecting the more important 1 interests 
of another set of persons, the former dictates, it is evident, are 
repealed, as it were, by the latter : and a man, were he to be 
governed by the former, could scarcely, with propriety, be said 
to be governed by the dictates of benevolence. On this account, 
were the motives on both sides sure to be alike present to a 
man s mind, the case of such a repugnancy would hardly be 
worth distinguishing, since the partial benevolence might be 
considered as swallowed up in the more extensive : if the former 
prevailed, and governed the action, it must be considered as not j 
owing its birth to benevolence, but to some other motive : if the 
latter prevailed, the former might be considered as having no ; 
effect. But the case is, that a partial benevolence may govern 
the action, without entering into any direct competition with 
the more extensive benevolence, which would forbid it ; because 
the interests of the less numerous assemblage of persons may bel 
present to a man s mind, at a time when those of the more 
numerous are either not present, or, if present, make no impres 
sion. It is in this way that the dictates of this motive may bej 
repugnant to utility, yet still be the dictates of benevolence.) ; 
What makes those of private benevolence conformable upon thct 
whole to the principle of utility, is, that in general they stand 
unopposed by those of public : if they are repugnant to them, it) 
is only by accident. What makes them the more conformable* 
is, that in a civilized society, in most of the cases in which thej 
would of themselves be apt to run counter to those of publi< 
benevolence, they find themselves opposed by stronger motive;! 
of the self-regarding class, which are played off against them ty 
the laws ; and that it is only in cases where they stand unop 
posed by the other more salutary dictates, that they are left freeii 
An act of injustice or cruelty, committed by a man for the sak; 
of his father or his son, is punished, and with reason, as muc" 
as if it were committed for his own. 

Next to XXXVIII. After good-will, the motive of which the dictate 1 

those of the seem to have the next best chance for coinciding with those < 

love of repu 
tation. 1 Or valuable. See ch. iv. [Value]. 

x.] Of Motives. 133 

utility, is that of the love of reputation. There is but one cir 
cumstance which prevents the dictates of this motive from coin 
ciding in all cases with those of the former. This is, that men 
in their likings and dislikings, in the dispositions they manifest 
to annex to any mode of conduct their approbation or their dis- 
1 approbation, and in consequence to the person who appears to 
j practise it, their good or their ill will, do not govern themselves 
! exclusively by the principle of utility. Sometimes it is the 
| principle of asceticism they are guided by : sometimes the prin 
ciple of sympathy and antipathy. There is another circumstance, 
j which diminishes, not their conformity to theprinciple of utility, 
I but only their efficacy in comparison with the dictates of the 
j motive of benevolence. The dictates of this motive will operate 
as strongly in secret as in public : whether it appears likely that 
the conduct which they recommend will be known or not : 
those of the love of reputation will coincide with those of bene 
volence only in proportion as a man s conduct seems likely to 
be known. This circumstance, however, does not make so much 
difference as at first sight might appear. Acts, in proportion 
as they are material, are apt to become known 1 : and in point 
| of reputation, the slightest suspicion often serves for proof. 
| Besides, if an act be a disreputable one, it is not any assurance 
a man can have of the secrecy of the particular act in question, 
that will of course surmount the objections he may have against 
engaging in it. Though the act in question should remain 
secret, it will go towards forming a habit, which may give birth 
to other acts, that may not meet with the same good fortune. 
There is no human being, perhaps, who is at years of discretion, 
on whom considerations of this sort have not some weight : and 
they have the more weight upon a man, in proportion to the 
strengthof hisintellectualpowers, and the firmness of his mind 2 . 
Add to this, the influence which habit itself, when once formed, 
has in restraining a man from acts towards which, from the 
view of the disrepute annexed to them, as well as from any 

1 See B. II. tit. [Evidence]. 

2 See ch. vi. [Sensibility], par. xii, xiii. 

124 Of Motives. [CHAP 

other cause, lie has contracted an aversion. The influence o: 
habit, in such cases, is a matter of fact, which, though no 
readily accounted for, is acknowledged and indubitable 1 . 
Next those XXXIX. After the dictates of the love of reputation comei 
of amity! 8 "" 6 as it should seem, those of the desire of amity. The former an 
disposed to coincide with those of utility, inasmuch as they ar 
disposed to coincide with those of benevolence. Now those 
the desire of amity are apt also to coincide, in a certain sor 
with those of benevolence. But the sort of benevolence wit 
the dictates of which the love of reputation coincides, is th 
more extensive ; that with which those of the desire of amit 
coincide, the less extensive. Those of the love of amity ha\ 
still, however, the advantage of those of the self -regarding motive 
The former, at one period or other of his life, dispose a man 1 
contribute to the happiness of a considerable number of person 
the latter, from the beginning of life to the end of it, confii 
themselves to the care of that single individual. The dictafr 
of the desire of amity, it is plain, will approach nearer to a COB 
cidence with those of the love of reputation, and thence wit) 
those of utility, in proportion, ccBteris paribus, to the number 
the persons whose amity a man has occasion to desire : ai 
hence it is, for example, that an English member of parliamer 
with all his own weaknesses, and all the follies of the peop 
whose amity he has to cultivate, is probably, in general, a bettjr 
character than the secretary of a visier at Constantinople, or 
a naib in Indostan. 

Difficulty of XL. The dictates of religion are, under the infinite diversi 
those of re- of religions, so extremely variable, that it is difficult to kn( 
what general account to give of them, or in what rank to plae 
the motive theybelong to. Upon the mention of religion, people 
first thoughts turn naturally to the religion they themselves p> 

1 Strictly speaking, habit, being but a fictitious entity, and not recy 
any thing distinct from the acts or perceptions by which it is said tone 
formed, cannot be the cause of any thing. The enigma, however, may He 
satisfactorily solved upon the principle of association, of the nature i.d 
force of which a very satisfactory account may be seen in Dr. Priestlf 
edition of Hartley on Man. 

x.] Of Motives. 125 

!ess. This is a great source of miscalculation, and has a tendency 
;o place this sort of motive in a higher rank than it deserves. 
Che dictates of religion would coincide, in all cases, with those 
>f utility, were the Being, who is the object of religion, univer- 
ally supposed to be as benevolent as he is supposed to be wise 
and powerful ; and were the notions entertained of his benevo- 
ence, at the same time, as correct as those which are entertained 
>f his wisdom and his power. Unhappily, however, neither of 
ihese is the case. He is universally supposed to be all-powerful : 
or by the Deity, what else does any man mean than the Being, 
whatever he be,by whom every thing is done ? And as to know- 
edge, by the same rule that he should know one thing he should 
w another. These notions seem to be as correct, for all 
naterial purposes, asthey are universal. But among the votaries 
>f religion (of which number the multifarious fraternity of Chris- 
ians is but a small part) there seem to be but few (I will not 
ay how few) who are real believers in his benevolence. They 
>all him benevolent in words, but they do not mean that he is 
50 in reality. They do not mean, that he is benevolent as man 
s conceived to be benevolent : they do not mean that he is 
enevolent in the only sense in which benevolence has a meaning. 
?or if they did,they would recognise that the dictates of religion 
;ould be neither more nor less than the dictates of utility : not 
i tittle different : not a tittle less or more. But the case is, 
.hat on a thousand occasions they turn their backs on the prin- 
;iple of utility. They go astray after the strange principles its 
intagonists : sometimes it is the principle of asceticism : some- 
imes the principle of sympathy and antipathy x . Accordingly, 
;he idea they bear in their minds, on such occasions, is but too 
)ften the idea of malevolence ; to which idea, stripping it of its 
>wn proper name, they bestow the specious appellation of the 
iocial motive 2 . The dictates of religion, in short, are no other 

1 Ch. ii. [Principles Adverse], par. xviii. 

* Sometimes, in order the better to conceal the cheat (from their own 
yes doubtless as well as from others) they set up a phantom of their own, 
vhich they call Justice : whose dictates are to modify (which being ex- 
gained, means to oppose) the dictates of benevolence. But justice, in the 

126 Of Motives. [CHAP. 

than the dictates of that principle which has been already men 
tioned under the name of the theological principle 1 . These, as 
has been observed, are just as it may happen, according to the 
biases of the person in question, copies of the dictates of one 01 
other of the three original principles : sometimes, indeed, of the 
dictates of utility : but f requentlyof those of asceticism, or those 
of sympathy and antipathy. In this respect they are only on a 
par with the dictates of the love of reputation : in another the) f 
are below it. The dictates of religion are in all places inter 
mixed more or less with dictates unconf ormable to those of utility 
deduced from texts, well or ill interpreted, of the writings held 
for sacred by each sect : unconformable, by imposing practice 
sometimes inconvenient to a man s self, sometimes pernicious t- 
the rest of the community. The sufferings of uncalled martyrs! 
the calamities of holy wars and religious persecutions, the mis 
chiefs of intolerant laws, (ob j ects which can here only be glance \ 
at, not detailed) are so many additional mischiefs over and abovj 
the number of those which were ever brought into the world b 
the love of reputation. On the other hand, it is manifest, thai 
with respect to the power of operating in secret, the dictates cj 
religion have the same advantage over those of the love of repi 
tation, and the desire of amity, as is possessed by the dictates 4 

Tendency XLI. Happily, the dictates of religion seem to approach near! 

imp y rov a e! e to and nearer to a coincidence with those of utility every day. Bi! 
why ? Because the dictates of the moral sanction do so : aii 
those coincide with or are influenced by these. Men of the woij 
religions, influenced by the voice and practice of the surroundiif 
world, borrow continually a new and a new leaf out of the bo<t 
of utility : and with these, in order not to break with thr 

only sense in which it has a meaning, is an imaginary personage, feigri 
for the convenience of discourse, whose dictates are the dictates of utiEI 
applied to certain particular cases. Justice, then, is nothing more thanD 
imaginary instrument, employed to forward on certain occasions, and y 
certain means, the purposes of benevolence. The dictates of justice 
nothing more than a part of the dictates of benevolence, which, on certn 
occasions, are applied to certain subjects ; to wit, to certain actions. 
1 See ch. ii. [Principles Adverse, &o.] 

x.] Of Motives. 127 

religion, they endeavour, sometimes with violence enough, to 
patch together and adorn the repositories of their faith. 

XLII. As to the self -regarding and dissocial motives, the Afterwards 
order that takes place among these, and the preceding one, in self-regard- 

point of extra-regarding influence, is too evident to need insist- and 
ing on. As to the order that takes place among the motives pleasure. 18 " 
of the self-regarding class, considered in comparison with one 
another, there seems to be no difference which on this occasion 
would be worth mentioning. With respect to the dissocial motive, 
it makes a difference (with regard to its extra -regarding effects) 
from which of two sources it originates ; whether from self- 
regarding or from social considerations. The displeasure you 
conceive against a man may be founded either on some act 
which offends you in the first instance, or on an act which off ends 
you no otherwise than because you look upon it as being pre 
judicial to some other party on whose behalf you interest your 
self : which other party may be of course either a determinate 
individual, or any assemblage of individuals, determinate or in 
determinate 1 . It is obvious enough, that a motive, though in 
itself dissocial, may, by issuing from a social origin, possess a 
social tendency ; and that its tendency, in this case, is likely to 
be the more social, the more enlarged the description is of the 
persons whose interests you espouse. Displeasure, venting itself 
against a man, on account of a mischief supposed to be done by 
him to the public, may be more social in its effects than any 
good-will, the exertions of which are confined to an individual 2 . 

5. Conflict among motives. 

XLIII. When a man has it in contemplation to engage in any Motives im- 
action, he is frequently acted upon at the same time by the force restraining, 
of divers motives : one motive, or set of motives, acting in one 
direction ; another motive, or set of motives, acting as it were in 
an opposite direction. The motives on one side disposing him 
to engage in the action : those on the other, disposing him not to 

1 See ch. vi. [Sensibility], par. xxi. 
a See supra, par. xxxvii. 

128 Of Motives. [CHAP. 

engage in it. Now, any motive, the influence of which tends to 
dispose him to engage in the action in question, may be termed 
an impelling motive : any motive, the influence of which tends 
to dispose him not to engage in it, a restraining motive. But 
these appellations may of course be interchanged, according as 
the act is of the positive kind, or the negative l . 
What are XLIV. It has been shown, that there is no sort of motive but 

the motives 

most fre- may give birth to any sort of action. It follows, therefore, that 
variance, there are no two motives but may come to be opposed to one 
another. Where the tendency of the act is bad, the most 
common case is for it to have been dictated by a motive either 
of the self-regarding, or of the dissocial class. In such case the 
motiveof benevolence has commonly been acting, though ineffec 
tually, in the character of a restraining motive. 
Example to XLV. An example may be of use, to show the variety of con- 

illustratea . -f 

struggle tending motives, by which a man may be acted upon at the 

among con- . . . . 

tending same time. Crillon, a Catholic (at a time when it was generally 
thought meritorious among Catholics to extirpate Protestants), 
was ordered by his king, Charles IX. of France, to fall privatel 
upon Coligny, a Protestant, and assassinate him : his answe 
was, Excuse me, Sire ; but I ll fight him with all my heart 2 
Here, then, were all the three forces above mentioned, includin 
that of the political sanction, acting upon him at once. B 
the political sanction, or at least so much of the force o 
it as such a mandate, from such a sovereign, issued on such a 
occasion, might be supposed to carry with it, he was enjoined t 
put Coligny to death in the way of assassination : by the reli 
gious sanction, that is, by the dictates of religious zeal, he wa 
enjoined to put him to death in any way : by the moral sanction 
or in other words, by the dictates of honour, that is, of the lov 
of reputation, he was permitted (which permission, when couple 
with the mandates of his sovereign, operated, he conceived, as a 
injunction) to fight the adversary upon equal terms : by th 

1 See ch. vii. [Actions], par. viii. 

2 The idea of the case here supposed is taken from an anecdote in re 
history, but varies from it in several particulars. 

x.] Of Motives. 139 

dictates of enlarged benevolence (supposing the mandate to be 
unjustifiable) he was enjoined not to attempt his life in any way, 
but to remain at peace with him : supposing the mandate to 
be unjustifiable, by the dictates of private benevolence he was 
enjoined not to meddle with him at any rate. Among this 
confusion of repugnant dictates, Crillon, it seems, gave the pre 
ference, in the first place, to those of honour : in the next 
place, to those of benevolence. He would have fought, had 
his offer been accepted ; as it was not, he remained at peace. 

Here a multitude of questions might arise. Supposing the 
dictates of the political sanction to follow the mandate of the 
sovereign, of what kind were the motives which they afforded him 
for compliance ? The answer is, of the self-regarding kind at 
any rate : inasmuch as, by the supposition, it was in the power 
of the sovereign to punish him for non-compliance, or reward 
him for compliance. Did they afford him the motive of re 
ligion ? (I mean independently of the circumstance of heresy 
above mentioned) the answer is, Yes, if his notion was, that it 
was God s pleasure he should comply with them ; No, if it was 
not. Did they afford him the motive of the love of reputation ? 
Yes, if it was his notion that the world would expect and re 
quire that he should comply with them : No, if it was not. Did 
they afford him that of benevolence? Yes, if it was his notion that 
the community would upon the whole be the better for his com 
plying with them : No, if it was not. But did the dictates of the 
political sanction, in the case in question, actually follow the 
mandates of the sovereign : in other words, was such a mandate 
legal ? This we see is a mere question of local jurisprudence, 
altogether foreign to the present purpose. 

XLVI. What is here said about the goodness and badness of Practical use 
motives, is far from being a mere matter of words. There will dlquisltSifs 
be occasion to make use of it hereafter for various important motives.* 
purposes. I shall have need of it for the sake of dissipating 
various prejudices, which are of disservice to the community, 
sometimes by cherishing the flame of civil dissensions 1 , at other 
1 See B. I. tit. [Rebellion]. 



Of Motives. 

times, by obstructing the course of justice. It will be shown, 
that in the case of many offences 1 , the consideration of the 
motive is a most material one : for that in the first place it 
makes a very material difference in the magnitude of the mis 
chief 2 : in the next place, that it is easy to be ascertained ; and 
thence may be made a ground for a difference in the demand for 
punishment : but that in other cases it is altogether incapable of 
being ascertained ; and that, were it capable of being ever so 
well ascertained, good or bad, it could make no difference in the 
demand for punishment : that in all cases, the motive that may 
happen to govern a prosecutor, is a consideration totally imma 
terial: whence maybe seen the mischievousness of the prejudice 
that is so apt to be entertained against informers ; and the con 
sequence it is of that the judge, in particular, should be proof 
against the influence of such delusions. 


Lastly, The subject of motives is one with which it is neces 
sary to be acquainted, in order to pass a judgment on any 
means that may be proposed for combating offences in their 
source 3 . 

But before the theoretical foundation for these practical ob 
servations can be completely laid, it is necessary we should say 
something on the subject of disposition : which, accordingly, will 
furnish matter for the ensuing chapter. 

1 See B. I. tit. [Simp. corp. injuries]. 
8 See ch. xi. [Dispositions]. 

Ib. tit. [Homicide]. 

See Append, tit. [Preventive Institutions]. 



I. IN the foregoing chapter it has been shown at large, that Disposition 
goodness or badness cannot, with any propriety, be predicated w 

of motives. Is there nothing then about a man that can pro 
perly be termed good or bad, when, on such or such an occasion, 
he suffers himself to be governed by such or such a motive ? 
Yes, certainly : his disposition. Now disposition is a kind of 
fictitious entity, feigned for the convenience of discourse, in 
order to express what there is supposed to be permanent in a 
man s frame of mind, where, on such or such an occasion, he has 
been influenced by such or such a motive, to engage in an act, 
which, as it appeared to him, was of such or such a tendency. 

II. It is with disposition as with every thing else : it will be -how far it 
good or bad according to its effects : according to the effects it the present 

f ,. ,. . . , . ,, , . , , , subject. 

has in augmenting or diminishing the happiness of the com 
munity. A man s disposition may accordingly be considered in 
two points of view : according to the influence it has, either, 
I. on his own happiness : or, 2. on the happiness of others. 
Viewed in both these lights together, or in either of them in 
discriminately, it may be termed, on the one hand, good ; on 
the other, bad ; or, in flagrant cases, depraved 1 . Viewed in the 

1 It might also be termed virtuous, or vicious. The only objection to 
the use of those terms on the present occasion is,the great quantity of good 
and bad repute that respectively stand annexed to them. The inconve 
nience of this is, their being apt to annex an ill- proportioned measure of 
disrepute to dispositions which are ill-constituted only with respect to the 
party himself : involving them in such a degree of ignominy as should be 
appropriated to such dispositions only as are mischievous with regard to 
others. To exalt weaknesses to a level with crimes, is a way to diminish 

E 2 

133 Human Dispositions in General. [CHAP. 

former of these lights, it has scarcely any peculiar name, which 
has as yet been appropriated to it. It might be termed, though 
but inexpressively, frail or infirm, on the one hand : sound or 
firm, on the other. Viewed in the other light, it might be 
termed beneficent, or meritorious, on the one hand : pernicious 
or mischievous, on the other. Now of that branch of a man s 
disposition, the effects of which regard in the first instance only 
himself, there needs not much to be said here. To reform it 
when bad, is the business rather of the moralist than the legis 
lator : nor is it susceptible of those various modifications which 
make so material a difference in the effects of the other. Again, 
with respect to that part of it, the effects whereof regard others 
in the first instance, it is only in as far as it is of a mischievous 
nature that the penal branch of law has any immediate concern 
with it : in as far as it may be of a beneficent nature, it belongs 
to a hitherto but little cultivated, and as yet unnamed branch of 
law, which might be styled the remuneratory. 

A mischiev- III. A man then is said to be of a mischievous disposition, 

tion ; l posl " when, by the influence of no matter what motives, he is pre- 

XspoStion 9 ; sumed to be more apt to engage, or form intentions of engaging, 

in acts which are apparently of a pernicious tendency, than in 

such as are apparently of a beneficial tendency : of a meritorious 

or beneficent disposition in the opposite case. 

What a IV. I say presumed : for, by the supposition, all that appears 

man s dispo- , , . , . . 

sition is, can is one single action, attended with one single tram of circum- 
matterof stances : but from that degree of consistency and uniformity 
t5n? m which experience has shown to be observable in the different 
actions of the same person, the probable existence (past or 
future) of a number of acts of a similar nature, is naturally and 
justly inferred from the observation of one single one. Under 
such circumstances, such as the motive proves to be in one in 
stance, such is the disposition to be presumed to be in others, 
it depends V. I say apparently mischievous : that is, apparently with 

upon what 

the abhorrence which ought to be reserved for crimes. To exalt small evils 
to a level with great ones, is the way to diminish the share of attention 
which ought to be paid to great ones. 

XL] Human Dispositions in General. 133 

regard to him : such as to him appear to possess that tendency : the act ap- 
f or from the mere event, independent of what to him it appears to him. 
beforehand likely to be, nothing can be inferred on either side. 
If to him it appears likely to be mischievous, in such case, 
though in the upshot it should prove innocent, or even bene 
ficial, it makes no difference ; there is not the less reason for 
presuming his disposition to be a bad one : if to him it appears 
likely to be beneficial or innocent, in such case, though in the 
upshot it should prove pernicious, there is not the more reason 
on that account for presuming his disposition to be a good one. 
And here we see the importance of the circumstances of inten- 
tionality 1 , consciousness 2 , unconsciousness 2 , and mis-supposal 2 . 

VI. The truth of these positions depends upon two others, Which posi- 
both of them sufficiently verified by experience : The one is, grounded on 
that in the ordinary course of things the consequences of actions i W The C cor- 
commonly turn out conformable to intentions. A man who sets betweenTn- 6 
up a butcher s shop, and deals in beef, when he intends to knock conse ns * 
down an ox, commonly does knock down an ox ; though by quei 
some unlucky accident he may chance to miss his blow and 

knock down a man : he who sets up a grocer s shop, and deals 
in sugar, when he intends to sell sugar, commonly does sell 
sugar : though by some unlucky accident he may chance to sell 
arsenic in the room of it. 

VII. The other is, that a man who entertains intentions of J Between 
doing mischief at one time is apt to entertain the like intentions tions of the 

7 same person 

at another 3 . at different 


VIII. There are two circumstances upon which the nature of The disposi- 
the disposition, as indicated by any act, is liable to depend : inferred ; 

1 See ch. viii. 2 See ch. ix. 

3 To suppose a man to be of a good disposition, and at the same time A disposition, 
likely, in virtue of that very disposition, to engage in an habitual train of p^eed^a 
mischievous actions, is a contradiction in terms : nor could such a proposi- ^chi^can? 
tion ever be advanced, but from the giving, to the thing which the word not be a good 
disposition is put for, a reality which does not belong to it. If then, for r " 
example, a man of religious disposition should, in virtue of that very dis 
position, be in the habit of doing mischief, for instance,by persecuting his 
neighbours, the case must be, either that his disposition, though good in 
certain respects, is not good upon the whole : or that a religious disposition 
is not in general a good one. 


134 Human Dispositions in General. [CHAP. 

1. From the i. The apparent tendency of the act : 2. The nature of the 
tendency of motive which gave birth to it. This dependency is subject to 

2. From the different rules, according to the nature of the motive. In stating 
the motlve. them, I suppose all along the apparent tendency of the act to be, 

as it commonly is, the same as the real. 

Case i. IX. i. Where the tendency of the act is good, and the motive 

good mo? is of the self-regarding kind. In this case the motive affords no 

regarding, inference on either side. It affords no indication of a good dis 

position : but neither does it afford any indication of a bad 


A baker sells his bread to a hungry man who asks for it. 
This, we see, is one of those acts of which, in ordinary cases, the 
tendency is unquestionably good. The baker s motive is the 
ordinary commercial motive of pecuniary interest. It is plain, 
that there is nothing in the transaction, thus stated, that can 
afford the least ground for presuming that the baker is a better 
or a worse man than any of his neighbours. 

T Sen 2 ^ 2 "^ere *k e tendency of the act is bad, and the motive, 
bad motive, as before, is of the self-reqardinq kind. In this case the dispo- 

self-regard- ... ,,-,. i 

ing. sition indicated is a mischievous one. 

A man steals bread out of a baker s shop : this is one of those 
acts of which the tendency will readily be acknowledged to be 
bad. Why, and in what respects it is so, will be stated farther 
on 1 . His motive, we will say, is that of pecuniary interest ; the 
desire of getting the value of the bread for nothing. His dispo 
sition, accordingly, appears to be a bad one : for every one will 
allow a thievish disposition to be a bad one. 

Tendency, XI 3- Where the tendency of the act is good, and the motive 

SreJgSod- is the P urel y social one of good- will. In this case the disposition 

win! indicated is a beneficent one. 

A baker gives a poor man a loaf of bread. His motive is 
compassion; a name given to the motive of benevolence, in par 
ticular cases of its operation. The disposition indicated by the 
baker, in this case, is such as every man will be ready enough to 
acknowledge to be a good one. 

1 See ch. xii. [Consequences], and Code, B. I. tit. [Theft]. 

XL] Human Dispositions in General. 135 

XII. 4. Where the tendency of the act is bad, and the motive r Case 4. 
is the purely social one of good- will. Even in this case the dis- bad motive 
position which the motive indicates is dubious : it may be a gc * 
mischievous or a meritorious one, as it happens ; according as 

the mischievousness of the act is more or less apparent. 

XIII. It may be thought, that a case of this sort cannot This case 
exist ; and that to suppose it, is a contradiction in terms. For possibieone. 
the act is one, which, by the supposition, the agent knows to be 

a mischievous one. How then can it be, that good- will, that is, 
the desire of doing good, could have been the motive that led 
him into it ? To reconcile this, we must advert to the distinc 
tion between enlarged benevolence and confined *. The motive 
that led him into it, was that of confined benevolence. Had he 
followed the dictates of enlarged benevolence, he would not have 
done what he did. Now, although he followed the dictates of 
that branch of benevolence, which in any single instance of its 
exertion is mischievous, when opposed to the other, yet, as the 
cases which call for the exertion of the former are, beyond com 
parison, more numerous than those which call for the exertion 
of the latter, the disposition indicated by him, in following the 
impulse of the former, will often be such as in a man, of the 
common run of men, may be allowed to be a good one upon the 

XIV. A man with a numerous family of children, on the Example I. 
point of starving, goes into a baker s shop, steals a loaf, divides 

it all among the children, reserving none of it for himself. It 
will be hard to infer that that man s disposition is a mischievous 
one upon the whole. Alter the case, give him but one child, 
and that hungry perhaps, but in no imminent danger of starving : 
and now let the man set fire to a house full of people, for the 
sake of stealing money out of it to buy the bread with. The dis 
position here indicated will hardly be looked upon as a good one. 

XV. Another case will appear more difficult to decide than Example n. 
either. Ravaillac assassinated one of the best and wisest of 
sovereigns, at a time when a good and wise sovereign, a blessing 

1 See ch. x. [Motives]. 

136 Human Dispositions in General. [CHAP. 

at all times so valuable to a state, was particularly precious : 
and that to the inhabitants of a populous and extensive empire. 
He is taken, and doomed to the most excruciating tortures. His 
son, well persuaded of his being a sincere penitent, and that 
mankind, in case of his being at large, would have nothing more 
to fear from him, effectuates his escape. Is this then a sign of a 
good disposition in the son, or of a bad one ? Perhaps some will 
answer, of a bad one ; for, besides the interest which the nation 
has in the sufferings of such a criminal, on the score of the ex 
ample, the future good behaviour of such a criminal is more than 
any one can have sufficient ground to be persuaded of. 

XVI. Well then, let Eavaillac, the son, not facilitate his 
father s escape ; but content himself with conveying poison to 
him, that at the price of an easier death he may escape his tor 
ments. The decision will now, perhaps, be more difficult. The 
act is a wrong one, let it be allowed, and such as ought by all 
means to be punished : but is the disposition manifested by it a 
bad one ? Because the young man breaks the laws in this one 
instance, is it probable, that if let alone, he would break the 
laws in ordinary instances, for the satisfaction of any inordinate 
desires of his own ? The answer of most men would probably 
be in the negative. 

XVII. 5. Where the tendency of the act is good, and the 
motive is a semi- social one, the love of reputation. In this case 

tive, love of , ,. . ,. . 

reputation, the disposition indicated is a good one. 

In a time of scarcity, a baker, for the sake of gaining the 
esteem of the neighbourhood, distributes bread gratis among the 
industrious poor. Let this be taken for granted : and let it be 
allowed to be a matter of uncertainty, whether he had any real 
feeling for the sufferings of those whom he has relieved, or no. 
His disposition, for all that, cannot, with any pretence of reason, 
be termed otherwise than a good and beneficent one. It can 
only be in consequence of some very idle prejudice, if it receives 
a different name 1 . 

The bulk of 1 The bulk of mankind, ever ready to depreciate the character of their 
mankind apt to neighbours, in order, indirectly, to exalt their own, will take occasion to- 

XL] Human Dispositions in General. 137 

XVIII. 6. Where the tendency of the act is bad, and the Case 6. 

i . . . Tendency, 

motive, as before, is a semi-social one, the love of reputation. &<* motive, 
In this case, the disposition which it indicates is more or less 
good or bad : in the first place, according as the tendency of the 
act is more or less mischievous : in the next place according as 
the dictates of the moral sanction, in the society in question, 
approach more or less to a coincidence with those of utility. It 
does not seem probable, that in any nation, which is in a state of 
tolerable civilization, in short, in any nation in which such rules 
as these can come to be consulted, the dictates of the moral 
sanction will so far recede from a coincidence with those of 
utility (that is, of enlightened benevolence) that the disposition 
indicated in this case can be otherwise than a good one upon the 

XIX. An Indian receives an injury, real or imaginary, from Example I. 
an Indian of another tribe. He revenges it upon the person of 

his antagonist with the most excruciating torments : the case 
being, that cruelties inflicted on such an occasion, gain him 
reputation in his own tribe. The disposition manifested in such 
a case can never be deemed a good one, among a people ever 

refer a motive to the class of bad ones as often as they can find one still depreciate Uus 
better, to which the act might have owed its birth. Conscious that his motlve> 
own motives are not of the best class, or persuaded that if they be, they 
will not be referred to that class by others ; afraid of being taken for a 
dupe, and anxious to show the reach of his penetration ; each man takes 
care, in the first place, to impute the conduct of every other man to the 
least laudable of the motives that can account for it : in the next place, 
when he has gone as far that way as he can, and cannot drive down the 
Individual motive to any lower class, he changes his battery, and attacks 
the very class itself. To the love of reputation he will accordingly give a 
bad name upon every occasion, calling it ostentation, vanity, or vain-glory. 
Partly to the same spirit of detraction, the natural consequence of the 
sensibility of men to the force of the moral sanction, partly to the influence 
3f the principle of asceticism, may, perhaps, be imputed the great abund- 
mce of bad names of motives, in comparison of such as are good or neutral: 
md, in particular, the total want of neutral names for the motives of sexual 
lesire, physical desire in general, and pecuniary interest. The superior 
abundance, even of good names, in comparison of neutral ones, would, if 
;xamined, be found rather to confirm than disprove the above remark. The 
anguage of a people on these points may, perhaps, serve in some measure 
is a key to their moral sentiments. But such speculative disquisitions are 
oreign to the purpose of the present work. 

138 Human Dispositions in General. [CHAP. 

so few degrees advanced, in point of civilization, above the 

Example ii. XX. A nobleman (to come back to Europe) contracts a debt 
with a poor tradesman. The same nobleman, presently after 
wards, contracts a debt, to the same amount, to another noble 
man, at play. He is unable to pay both : he pays the whole 
debt to the companion of his amusements, and no part of it to 
the tradesman. The disposition manifested in this case can 
scarcely be termed otherwise than a bad one. It is certainly, 
however, not so bad as if he had paid neither. The principle of 
love of reputation, or (as it is called in the case of this partial 
application of it) honour, is here opposed to the worthier prin 
ciple of benevolence, and gets the better of it. But it gets the 
better also of the self-regarding principle of pecuniary interest. 
The disposition, therefore, which it indicates, although not so 
good a one as that in which the principle of benevolence pre 
dominates, is better than one in which the principle of self- 
interest predominates. He would be the better for having more 
benevolence : but would he be the better for having no honour ? 
This seems to admit of great dispute 1 . 
Case 7. XXI. 7. Where the tendency of the act is good, and the 

pood m6- motive is the semi-social one of religion. In this case, the dis- 
)ie y position indicated by it (considered with respect to the influence 
of it on the man s conduct towards others) is manifestly a bene 
ficent and meritorious one. 

A baker distributes bread gratis among the industrious poor. 
It is not that he feels for their distresses : nor is it for the sake 
of gaining reputation among his neighbours. It is for the sake 
of gaining the favour of the Deity : to whom, he takes for 
granted, such conduct will be acceptable. The disposition mani 
fested by such conduct is plainly what every man would call a 
good one. 
Case 8. XXII. 8. Where the tendency of the act is bad, and the motive 

bad-motive, that of religion, as before. In this case the disposition is 

religion. dubious. It is good or bad, and more or less good or bad, in the 
1 See the case of Duels discussed in B. I. tit. [Homicide].. 

XL] Human Dispositions in General. 139 

first place, as the tendency of the act is more or less mischievous ; 
in the next place, according as the religious tenets of the person 
in question approach more or less to a coincidence with the dic 
tates of utility. 
XXIII. It should seem from history, that even in nations in Thedisposi- 

....... IT tionmaybe 

a tolerable state of civilization in other respects, the dictates ot bad in this 
religion have been found so far to recede from a coincidence 
with those of utility ; in other words, from those of enlightened 
benevolence ; that the disposition indicated in this case may even 
be a bad one upon the whole. This however is no objection to 
the inference which it affords of a good disposition in those 
countries (such as perhaps are most of the countries of Europe 
at present) in which its dictates respecting the conduct of a man 
towards other men approach very nearly to a coincidence with 
those of utility. The dictates of religion, in their application to 
the conduct of a man in what concerns himself alone, seem in 
most European nations to savour a good deal of the ascetic 
principle: but the obedience to such mistaken dictates indicates 
not any such disposition as is likely to break out into acts of 
pernicious tendency with respect to others. Instances in which 
the dictates of religion lead a man into acts which are pernicious 
in this latter view, seem at present to be but rare : unless it be 
acts of persecution, or impolitic measures on the part of govern 
ment, where the law itself is either the principal actor or an 
accomplice in the mischief. Kavaillac, instigated by no other 
motive than this, gave his country one of the most fatal stabs 
that a country ever received from a single hand : but happily the 
Ravaillacs are but rare. They have been more frequent, how 
ever, in France than in any other country during the same 
period : and it is remarkable, that in every instance it is this 
motive that hasproduced them. When they do appear, however, 
nobody, I suppose, but such as themselves, will be for terming a 
disposition, such as they manifest, a good one. It seems hardly 
to be denied, but that they are just so much the worse for their 
notions of religion ; and that had they been left to the sole 
guidance of benevolence, and the love of reputation, without any 

140 Human Dispositions in General. [CHAP. 

religion at all, it would have been but so much the better for 
mankind. One may say nearly the same thing, perhaps, of those 
persons who, without any particular obligation, have taken an 
active part in the execution of laws made for the punishment of 
those who have the misfortune to differ with the magistrate in 
matters of religion, much more of the legislator himself, who has 
put it in their power. If Louis XIV. had had no religion, France 
would not have lost 800,000 of its most valuable subjects. The 
same thing may be said of the authors of the wars called holy 
ones ; whether waged against, persons called Infidels, or persons 
branded with the still more odious name of Heretics. In Den 
mark, not a great many years ago, a sect is said to have arisen, 
who, by a strange perversion of reason, took it into their heads, 
that, by leading to repentance, murder, or any other horrid crime, 
might be made the road to heaven. It should all along, how 
ever, be observed, that instances of this latter kind were always 
rare : and that in almost all the countries of Europe, instances 
of the former kind, though once abundantly frequent, have for 
some time ceased. In certain countries, however, persecution at 
home, or (what produces a degree of restraint, which is one part 
of the mischiefs of persecution) I mean the disposition to perse 
cute, whensoever occasion happens, is not yet at an end : inso 
much that if there is no actual persecution, it is only because 
there are no heretics ; and if there are no heretics, it is only 
because there are no thinkers *. 

XXIV. 9. Where the tendency of the act is good, and the 
motive (as before) is the dissocial one of ill-will. In this case 

tive, malevo- 

lence. the motive seems not to afford any indication on either side. It 
is no indication of a good disposition ; but neither is it any 
indication of a bad one. 

Example. You have detected a baker in selling short weight : you prose 
cute him for the cheat. It is not for the sake of gain that you 
engaged in the prosecution ; for there is nothing to be got by it : 
it is not from public spirit : it is not for the sake of reputation ; 
for there is no reputation to be got by it : it is not in the view 
1 See B. I. tit. [Offences against Religion]. 

XL] Human Dispositions in General. 141 

of pleasing the Deity : it is merely on account of a quarrel you 
have with the man you prosecute. From the transaction, as 
thus stated, there does not seem to be any thing to be said either 
in favour of your disposition or against it. The tendency of the 
act is good : but you would not have engaged in it, had it not 
been from a motive which there seems no particular reason to 
conclude will ever prompt you to engage in an act of the same 
kind again. Your motive is of that sort which may, with least 
impropriety, be termed a bad one : but the act is of that sort, 
which, were it engaged in ever so often, could never have any 
evil tendency ; nor indeed any other tendency than a good one. 
By the supposition, the motive it happened to be dictated by was 
that of ill-will : but the act itself is of such a nature as to have 
wanted nothing but sufficient discernment on your part in order 
to have been dictated by the most enlarged benevolence. Now, 
from a man s having suffered himself to be induced to gratify his 
resentment by means of an act of which the tendency is good, it 
by no means follows that he would be ready on another occasion, 
through the influence of the same sort of motive, to engage in 
any act of which the tendency is a bad one. The motive that 
impelled you was a dissocial one : but what social motive could 
there have been to restrain you ? None, but what might have 
been outweighed by a more enlarged motive of the same kind. 
Now, because the dissocial motive prevailed when it stood alone, 
it by no means follows that it would prevail when it had a social 
one to combat it. 

XXV. 10. Where the tendency of the act is "bad, and the Caseio. 
motive is the dissocial one of malevolence. In this case the iad~motive, 
disposition it indicates is of course a mischievous one. 

The man who stole the bread from the baker, as before, did it Example, 
with no other view than merely to impoverish and afflict him : 
accordingly, when he had got the bread, he did not eat, or sell 
.t ; but destroyed it. That the disposition, evidenced by such 

transaction, is a bad one, is what every body must perceive 

XXVI. Thus much with respect to the circumstances from Probiem-to 

142 Human Dispositions in General. [CHAP. 

measure the which the mischievousness or meritoriousness of a man s dis- 

depravityin . . 

a man s dis- position is to be inferred in the gross : we come now to the 
measure of that mischievousness or meritoriousness, as resulting 
from those circumstances. Now with meritorious acts and dis 
positions we have no direct concern in the present work. All 
that penal law is concerned to do, is to measure the depravity of 
the disposition where the act is mischievous. To this object, 
therefore, we shall here confine ourselves. 

A man s dis- XXVII. It is evident, that the nature of a man s disposition 
constituted must depend upon the nature of the motives he is apt to be 
of hislnten- influenced by : in other words, upon the degree of his sensibility 
to the force of such and such motives. For his disposition is, as 
it were, the sum of his intentions : the disposition he is of during 
a certain period, the sum or result of his intentions during that 
period. If, of the acts he has been intending to engage in during 
the supposedperiod, those which are apparently of amischievous 
tendency, bear a large proportion to those which appear to him 
to be of the contrary tendency, his disposition will be of the 
mischievous cast : if but a small proportion, of the innocent 
or upright. 

which owe XXVIII. Now intentions, like every thing else, are produced 
to motives, by the things that are their causes : and the causes of intentions 
are motives. If, on any occasion, a man forms either a good or 
a bad intention, it must be by the influence of some motive. 
A seducing XXIX. When the act, which a motive prompts a man to 
?ng SRe, engage in, is of a mischievous nature, it may, for distinction s 
teiaiyor U sake, be termed a seducing or corrupting motive : in which case 
motived Ory also any motive which, in opposition to the former, acts in the 
character of a restraining motive, may be styled a tutelary, 
preservatory, or preserving motive. 
motive-Tare XXX. Tutelary motives may again be distinguished into 1 
eitherstand- standing or constant, and occasional. By standing tutelary mo- 
sionai. tives, I mean such as act with more or less force in all, or at 
least in most cases, tending to restrain a man from any mis 
chievous acts he may be prompted to engage in ; and that with 
a force which depends upon the general nature of the act, rather 

XT.] Human Dispositions in General. 143 

than upon any accidental circumstance with which any indi 
vidual act of that sort may happen to be accompanied. By oc 
casional tutelary motives, I mean such motives as may chance 
to act in this direction or not, according to the nature of the 
act, and of the particular occasion on which the engaging in it 
is brought into contemplation. 

XXXI. Now it has been shown, that there is no sort of standing 

..-,,., .-, , i , , tutelary mo- 

motive by which a man may not be prompted to engage in acts tives are, 
that are of a mischievous nature ; that is, which may not come 
to act in the capacity of a seducing motive. It has been shown, 
on the other hand, that there are some motives which are re 
markably less likely to operate in this way than others. It has 
also been shown, that the least likely of all is that of benevolence 
or good-will : the most common tendency of which, it has been 
shown, is to act in the character of a tutelary motive. It has 
also been shown, that even when by accident it acts in one way 
in the character of a seducing motive, still in another way it acts 
in the opposite character of a tutelary one. The motive of good 
will, in as far as it respects the interests of one set of persons, 
may prompt a man to engage in acts which are productive of 
mischief to another atod more extensive set : but this is only 
because his good- will is imperfect and confined : not taking into 
contemplation the interests of all the persons whose interests are 
at stake. The same motive, were the affection it issued from 
more enlarged, would operate effectually, in the character of a 
constraining motive, against that very act to which, by the sup 
position, it gives birth. This same sort of motive may therefore, 
without any real contradiction or deviation from truth, beranked 
in the number of standing tutelary motives, notwithstanding the 
occasions in which it may act at the same time in the character 
of a seducing one. 

XXXII. The same observation, nearly, may be applied to the 2. The love 
semi-social motive of love of reputation. The force of this, like ticnf" 
that of the former, is liable to be divided against itself. As in 

the case of good-will, the interests of some of the persons, who 
may be the objects of that sentiment, are liable to be at variance 

144 Human Dispositions in General. [CHAP. 

with those of others : so in the case of love of reputation, the 
sentiments of some of the persons, whose good opinion is desired, 
may be at variance with the sentiments of other persons of that 
number. Now in the case of an act, which is really of a mis 
chievous nature, it can scarcely happen that there shall be no 
persons whatever who will look upon it with an eye of disappro 
bation. It can scarcely ever happen, therefore, that an act really 
mischievous shall not have some part at least, if not the whole, 
of the force of this motive to oppose it ; nor, therefore, that this 
motive should not act with some degree of force in the character 
of a tutelary motive. This, therefore, may be set down as 
another article in the catalogue of standing tutelary motives. 
& The desire XXXIII. The same observation may be applied to the desire 
of amity, though not in altogether equal measure. For, not 
withstanding the mischievousness of an act, it may happen, 
without much difficulty, that all the persons for whose amity a 
man entertains any particular present desire which is accom 
panied with expectation, may concur in regarding it with an eye 
rather of approbation than the contrary. This is but too apt to 
be the case among such fraternities as those of thieves, smug 
glers, and many other denominations of offenders. This, how 
ever, is not constantly, nor indeed most commonly the case : 
insomuch, that the desire of amity may still be regarded, upon 
the whole, as a tutelary motive, were it only from the closeness 
of its connexion with the love of reputation. And it may be 
ranked among standing tutelary motives, since, where it does 
apply, the force with which it acts, depends not upon the occa 
sional circumstances of the act which it opposes, but upon prin 
ciples as general as those upon which depend the action of the 
other semi- social motives, 
tive of "it XXXIV. The motive of religion is not altogether in the same 
gion. case with the three former. The force of it is not, like theirs, 

liable to be divided against itself. I mean in the civilized 
nations of modern times, among whom the notion of the unity of 
the Godhead is universal. In times of classical antiquity it was 
otherwise. If a man got Venus on his side, Pallas was on the 

XL] Human Dispositions in General. 145 

other : if ^Eolus was for him, Neptune was against him. ^Eneas, 
with all his piety, had but a partial interest at the court of 
heaven. That matter stands upon a different footing now-a- 
days. In any given person, the force of religion, whatever it be, 
is now all of it on one side. It may balance, indeed, on which 
side it shall declare itself : and it may declare itself, as we have 
seen already in but too many instances, on the wrong as well as 
on the right. It has been, at least till lately, perhaps is still, 
accustomed so much to declare itself on the wrong side, and that 
in such material instances, that on that account it seemed not 
proper to place it, in point of social tendency, on a level alto 
gether with the motive of benevolence. Where it does act, how 
ever, as it does in by far the greatest number of cases, in opposi 
tion to the ordinary seducing motives, it acts, like the motive 
of benevolence, in an uniform manner, not depending upon the 
particular circumstances that may attend the commission of the 
act; but tending to oppose it, merely on account of its mis- 
chievousness ; and therefore, with equal force, in whatsoever 
circumstances it may be proposed to be committed. This, there 
fore, may also be added to the catalogue of standing tutelary 

XXXV. As to the motives which may operate occasionally occasional 
in the character of tutelary motives, these, it has been already thJes maybe 
intimated, are of various sorts, and various degrees of strength ever7 hats 
in various offences : depending not only upon the nature of the 
offence, but upon the accidental circumstances in which the idea 

of engaging in it may come in contemplation. Nor is there any 
sort of motive which may not come to operate in this character ; 
as may be easily conceived. A thief, for instance, may be pre 
vented from engaging in a projected scheme of house-breaking, 
by sitting too long over his bottle 1 , by a visit from his doxy, by 
the occasion he may have to go elsewhere, in order to receive his 
dividend of a former booty 2 ; and so on. 

XXXVI. There are some motives, however, which seem more Motives that 

1 Love of the pleasures of the palate, 

2 Pecuniary interest. 

146 Hitman Dispositions in General. [CHAP. 

are particu- apt to act in this character than others ; especially as things are 
act m a fhi8 now constituted, now that the law has every where opposed to 
aVefi^iSve the force of the principal seducing motives, artificial tutelary 
2. leif-pre- motives of its own creation. Of the motives here meant it will 
servation. ^ e necessary to take a general view. They seem to be reducible 
to two heads ; viz. I. The love of ease ; a motive put into action 
by the prospect of the trouble of the attempt ; that is, the trouble 
which it may be necessary to bestow, in overcoming the physical 
difficulties that may accompany it. 2. Self-preservation, as op 
posed to the dangers to which a man may be exposed in the 
prosecution of it. 

Dangers to XXXVII. These dangers may be either, I. Of a purely physi- 

preservation cal nature : or, 2. Dangers resulting from moral agency ; in 

in this case other words, from the conduct of any such persons to whom the 

spect, are, act, if known, may be expected to prove obnoxious. But moral 

purely phy- agency supposes knowledge with respect to the circumstances 

dangers that are to have the effect of external motives in giving birth to Now the obtaining such knowledge, with respect to the 

commission of any obnoxious act, on the part of any persons 

who may be disposed to make the agent suffer for it, is called 

detection ; and the agent concerning whom such knowledge is 

obtained, is said to be detected. The dangers, therefore, which 

may threaten an offender from this quarter, depend, whatever 

they may be, on the event of his detection ; and may, therefore, 

be all of them comprised under the article of the danger of 


Danger de- XXXVIII. The danger depending upon detection may be 
detection " divided again into two branches : I. That which may result 
from, res from any opposition that may be made to the enterprise by 
oiPtJS^pot? persons on the spot ; that is, at the very time the enterprise is 
quent se carrying on : 2. That which respects the legal punishment, or 
punishment. o ^ er suffering, that may await at a distance upon the issue of 

the enterprise. 
The force of XXXIX. It may be worth calling to mind on this occasion, 

fellG two 

standing tu- that among the tutelary motives, which have been styled con- 
tives of love stant ones, there are two of which the force depends (though not 

XL] Human Dispositions in General. 147 

so entirely as the force of the occasional ones which have been of reputa- 
just mentioned, yet in a great measure) upon the circumstance of sire of amity, 
detection. These, it may be remembered, are, the love of reputa- uporfdetec- 
tion, and the desire of amity. In proportion, therefore, as the lon * 
chance of being detected appears greater, these motives will 
apply with the greater force : with the less force, as it appears 
less. This is not the case with the two other standing tutelary 
motives, that of benevolence, and that of religion. 

XL. We are now in a condition to determine, with some de- strength of 
gree of precision, what is to be understood by the strength o/aS^whatis 
temptation, and what indication it may give of the degree o f meantbyit< 
mischievousness in a man s disposition in the case of any offence. 
When a man is prompted to engage in any mischievous act, we 
will say, for shortness, in an offence, the strength of the tempta 
tion depends upon the ratio between the force of the seducing 
motives on the one hand, and such of the occasional tutelary 
ones, as the circumstances of the case call forth into action, on 
the other. The temptation, then, may be said to be strong, 
when the pleasure or advantage to be got from the crime is such 
as in the eyes of the offender must appear great in comparison 
of the trouble and danger that appear to him to accompany the 
enterprise : slight or weak, when that pleasure or advantage is 
si io h as must appear small in comparison of such trouble and 
snoh danger. It is plain the strength of the temptation depends 
not upon the force of the impelling (that is of the seducing) 
motives altogether : for let the opportunity be more favourable, 
that is, let the trouble, or any branch of the danger, be made 
[ess than before, it will be acknowledged, that the temptation 
is made so much the stronger : and on the other hand, let the 
opportunity become less favourable, or, in other words, let the 
trouble, or any branch of the danger, be made greater than before, 
fche temptation will be so much the weaker. 

Now, after taking account of such tutelary motives as have 
Deen styled occasional, the only tutelary motives that can remain 
ire those which have been termed standing ones. But those 
have been termed the standing tutelary motives, are the 



148 Human Dispositions in General. [CHAP. 

same that we have been styling social. It follows, therefore, 
that the strength of the temptation, in any case, after deducting 
the force of the social motives, is as the sum of the forces of the 
seducing, to the sum of the forces of the occasional tutelary 

indications XLI. It remains to be inquired, what indication concern- 
afforded by . _^ , _. . . 
this and ing the mischievousness or depravity ot a man s disposition is 

cumstances afforded by the strength of the temptation, in the case where 
tS?depn2 any offence happens to have been committed. It appears, 
offender s then, that the weaker the temptation is, by which a man has 
been overcome, the more depraved and mischievous it shows 
his disposition to have been. For the goodness of his disposi 
tion is measured by the degree of his sensibility to the action of 
the social motives 1 : in other words, by the strength of the 
influence which those motives have over him : now, the less 
considerable the force is by which their influence on him has 
been overcome, the more convincing is the proof that has been 
given of the weakness of that influence. 

Again, The degree of a man s sensibility to the force of the 
social motives being given, it is plain that the force with which 
those motives tend to restrain him from engaging in any mis 
chievous enterprise, will be as the apparent mischievousness of 
such enterprise, that is, as the degree of mischief with which it 
appears to him likely to be attended. In other words, the less 
mischievous the offence appears to him to be, the less averse he 
will be, as far as he is guided by social considerations, to engage 
in it ; the more mischievous, the more averse. If then the 
nature of the offence is such as must appear to him highly mis 
chievous, and yet he engages in it notwithstanding, it shows, 
that the degree of his sensibility to the force of the social mo 
tives is but slight ; and consequently that his disposition is 
proportionably depraved. Moreover, the less the strength of the 
temptation was, the more pernicious and depraved does it show 
his disposition to have been. For the less the strength of the 
temptation was, the less was the force which the influence of 
1 Supra, par. xxvii, xxviii. . 

XL] Human Dispositions in General. 149 

those motives had to overcome : the clearer therefore is the 
proof that has been given of the weakness of that influence. 

XLII. From what has been said, it seems, that, for judging of Rules for 
the indication that is afforded concerning the depravity of 

man s disposition by the strength of the temptation, compared potion in- 

with the mischievousness of the enterprise, the following 
may be laid down : 

Rule I. The strength of the temptation being given, the mis 
chievousness of the disposition manifested by the enterprise, is as 
the apparent mischievousness of the act. 

Thus, it would show a more depraved disposition, to murder 
a man for a reward of a guinea, or falsely to charge him with a 
robbery for the same reward, than to obtain the same sum from 
him by simple theft : the trouble he would have to take, and the 
risk he would have to run, being supposed to stand on the same 
footing in the one case as in the other. 

Rule 2. The apparent mischievousness of the act being given y 
a man s disposition is the more depraved, the slighter the tempta 
tion is by which he has been overcome. 

Thus, it shows a more depraved and dangerous disposition, if 
a man kill another out of mere sport, as the Emperor of Morocco, 
Muley Mahomet, is said to have done great numbers, than out 
of revenge, as Sylla and Marius did thousands, or in the view of 
self-preservation, as Augustus killed many, or even for lucre, as 
the same Emperor is said to have killed some. And the effects 
of such a depravity, on that part of the public which is apprized 
of it, run in the same proportion. From Augustus, some persons 
only had to fear, under some particular circumstances. From 
Muley Mahomet, every man had to fear at all times. 

Rule 3. The apparent mischievousness of the act being given, 
the evidence which it affords of the depravity of a man s disposi 
tion is the less conclusive, the stronger the temptation is by which 
he has been overcome. 

Thus, if a poor man, who is ready to die with hunger, steal a 
loaf of bread, it is a less explicit sign of depravity, than if a rich 
man were to commit a theft to the same amount. It will be 

150 Human Dispositions in General. [CHAP. 

v j. L 

observed, that in this rule all that is said is, that the evidence of 
depravity is in this case the less conclusive : it is not said that 
the depravity is positively the less. For in this case it is possible, 
for any thing that appears to the contrary, that the theft might 
have been committed, even had the temptation been not so 
strong. In this case, the alleviating circumstance is only a mat 
ter of presumption; in the former, the aggravating circumstance 
is a matter of certainty. 

Rule 4. W here the motive is of the dissocial kind, the apparent 
mischievousness of the act, and the strength of the temptation, 
being given, the depravity is as the degree of deliberation with 
which it is accompanied. 

For in every man, be his disposition ever so depraved, the 
social motives are those which, wherever the self-regarding 
ones stand neuter, regulate and determine the general tenor of 
his life. If the dissocial motives are put in action, it is only in 
particular circumstances, and on particular occasions; the gentle 
but constant force of the social motives being for a while sub 
dued. The general and standing bias of every man s nature is, 
therefore, towards that side to which the force of the social mo 
tives would determine him to adhere. This being the case, the 
force of the social motives tends continually to put an end to 
that of the dissocial ones ; as, in natural bodies, the force of 
friction tends to put an end to that which is generated by im 
pulse. Time, then, which wears away the force of the dissocial 
motives, adds to that of the social. The longer, therefore, a man 
continues, on a given occasion, under the dominion of the dis 
social motives, the more convincing is the proof that has been 
given of his insensibility to the force of the social ones. 

Thus, it shows a worse disposition, where a man lays a de 
liberate plan for beating his antagonist, and beats him accord 
ingly, than if he were to beat him upon the spot, in consequence 
of a sudden quarrel : and worse again, if, after having had him 
a long while together in his power, he beats him at intervals, 
and at his leisure 1 . 

1 See B. I. tit. [Confinement]. 

xi.] Human Dispositions in General. 151 

XLIII. The depravity of disposition, indicated by an act, is a Use of this 
material consideration in several respects. Any mark of extra- n 
ordinary depravity, by adding to the terror already inspired by 
the crime, and by holding up the offender as a person from 
whom there may be more mischief to be apprehended in future, 
adds in that way to the demand for punishment. By indicating 
a general want of sensibility on the part of the offender, it may 
add in another way also to the demand for punishment. The 
article of disposition is of the more importance, inasmuch as, in 
measuring out the quantum of punishment, the principle of sym 
pathy and antipathy is apt to look at nothing else. A man who 
punishes because he hates, and only because he hates, such a 
man, when he does not find any thing odious in the disposition, 
is not for punishing at all ; and when he does, he is not for 
carrying the punishment further than his hatred carries him. 
Hence the aversion we find so frequently expressed against the 
maxim, that the punishment must rise with the strength of the 
temptation ; a maxim, the contrary of which, as we shall see, 
would be as cruel to offenders themselves, as it would be sub 
versive of the purposes of punishment. 



i. Shapes in which the mischief of an act may show itself. 

Recapituia- I. HITHERTO we have been speaking of the various articles or 
objects on which the consequences or tendency of an act may 
depend : of the bare act itself : of the circumstances it may have 
been, or may have been supposed to be, accompanied with : of 
the consciousness a man may have had with respect to any such 
circumstances : of the intentions that may have preceded the 
act : of the motives that may have given birth to those inten 
tions : and of the disposition that may have been indicated by 
the connexion between such intentions and such motives. We 
now come to speak of consequences or tendency : an article which 
forms the concluding link in all this chain of causes and effects, 
involving in it the materiality of the whole. Now, such part of 
this tendency as is of a mischievous nature, is all that we have 
any direct concern with; to that, therefore, we shall here confine 

Mischief of II. The tendency of an act is mischievous when the conse- 
ag^egate 6 quences of it are mischievous ; that is to say, either the certain 
chievdus & ~ consequences or the probable. The consequences, how many and 
quences. whatsoever they may be, of an act, of which the tendency is mis 
chievous, may, such of them as are mischievous, be conceived to 
constitute one aggregate body, which may be termed the mischief 
of the act. 
The mischief III. This mischief may frequently be distinguished, as it 

of an act, . , , , J . . 

primary or were, into two shares or parcels : the one containing what 
may be called the primary mischief ; the other, what may be 

Of the Consequences of a Mischievous Act. 153 

called the secondary. That share may be termed the primary, 
which it sustained by an assignable individual, or a multitude of 
assignableindividuals. That share may betermed the secondary, 
which, taking its origin from the former, extends itself either 
over the whole community, or over some other multitude of 
unassignable individuals. 

IV. The primary mischief of an act may again be distinguished Primary 
into two branches : I. The original : and, 2. The derivative. By deStive!" 
the original branch, I mean that which alights upon and is con 
fined to any person who is a sufferer in the first instance, and on 

his own account: the person, for instance, who is beaten, robbed, 
or murdered. By the derivative branch, I mean any share of 
j mischief which may befall any other assignable persons in conse 
quence of his being a sufferer, and no otherwise. These persons 
must, of course, be persons who in some way or other are con 
nected with him. Now the ways in which one person may be 
connected with another, have been already seen : they may be 
connected in the way of interest (meaning self -regarding interest) 
or merely in the way of sympathy. And again, persons con 
nected with a given person, in the way of interest, may be 
connected with him either by affording support to him, or by 
deriving it from him l . 

V. The secondary mischief, again, may frequently be seen to The 
consist of two other shares or parcels : the first consisting of L Aiannfor, 
pain ; the other of danger. The pain which it produces is a 

pain of apprehension : a pain grounded on the apprehension of 
suffering such mischiefs or inconveniences, whatever they may 
be, as it is the nature of the primary mischief to produce. It 
may be styled, in one word, the alarm. The danger is the 
chance, whatever it may be, which the multitude it concerns 
may in consequence of the primary mischief stand exposed to, 
of suffering such mischiefs or inconveniences. For danger is 
nothing but the chance of pain, or, what comes to the same 
thing, of loss of pleasure. 

VI. An example may serve to make this clear. A man Example. 

1 See ch. vi. [Sensibility]. 

T 54 Of Me Consequences of a Mischievous Act. [CHAP. 

attacks you on the road, and robs you. You suffer a pain on 
the occasion of losing so much money 1 : you also suffered a pain 
at the thoughts of the personal ill-treatment you apprehended 
he might give you, in case of your not happening to satisfy his 
demands 2 . These together constitute the original branch of the 
primary mischief, resulting from the act of robbery. A creditor 
of yours, who expected you to pay him with part of that 
money, and a son of yours, who expected you to have given 
him another part, are in consequence disappointed. You are 
obliged to have recourse to the bounty of your father, to make 
good part of the deficiency. These mischiefs together make up 
the derivative branch. The report of this robbery circulates 
from hand to hand, and spreads itself in the neighbourhood. It 
finds its way into the newspapers, and is propagated over the 
whole country. Various people, on this occasion, call to mind 
the danger which they and their friends, as it appears from this 
example, stand exposed to in travelling; especially such as may 
have occasion to travel the same road. On this occasion they 
naturally feel a certain degree of pain : slighter or heavier, ac 
cording to the degree of ill-treatment they may understand you 
to have received; the frequency of the occasion each person may 
have to travel in that same road, or its neighbourhood ; the 
vicinity of each person to the spot ; his personal courage ; the 
quantity of money he may have occasion to carry about with 
him ; and a variety of other circumstances. This constitutes 
the first part of the secondary mischief, resulting from the act 
of robbery ; viz. the alarm. But people of one description or 
other, not only are disposed to conceive themselves to incur 
a chance of being robbed, in consequence of the robbery com 
mitted upon you, but (as will be shown presently) they do really 
incur such a chance. And it is this chance which constitutes 
the remaining part of the secondary mischief of the act of 
robbery; viz. the danger. 

1 Viz. a pain of privation. See ch. v. [Pleasures and Pains], xvii. 

2 Viz. a pain of apprehension, grounded on the prospect of organical 
pain, or whatever other mischiefs might have ensued from the ill treat 
ment. Ib. xxx. 

xii.] Of the Consequences of a Mischievous Act. 155 

VII. Let us see what this chance amounts to ; and whence The danger, 
it comes. How is it, for instance, that one robbery can contri- arises a 
bute to produce another ? In the first place, it is certain that affords n" ce 
it cannot create any direct motive. A motive must be thetivetoa 
prospect of some pleasure, or other advantage, to be enjoyed u 

in future : but the robbery in question is past : nor would it 
furnish any such prospect were it to come : for it is not one 
robbery that will furnish pleasure to him who may be about to 
commit another robbery. The consideration that is to ope 
rate upon a man, as a motive or inducement to commit a 
robbery, must be the idea of the pleasure he expects to derive 
from the fruits of that very robbery : but this pleasure exists 
independently of any other robbery. 

VIII. The means, then, by which one robbery tends, as it But it sug- 
should seem, to produce another robbery, are two. I. By sug- biiity, and 

,.,, , , . , . weakens the 

gesting to a person exposed to the temptation, the idea ot com- force of re 
mitting such another robbery (accompanied, perhaps, with the natives? 
belief of its facility). In this case the influence it exerts applies 
itself, in the first place, to the understanding. 2. By weakening 
the force of the tutelary motives which tend to restrain him 
from such an action, and thereby adding to the strength of the 
temptation 1 . In this case the influence applies itself to the will. 
These forces are, I. The motive of benevolence, which acts as a 
branch of the physical sanction 2 . 2. The motive of self-pre 
servation, as against the punishment that may stand provided 
by the political sanction. 3. The fear of shame ; a motive be 
longing to the moral sanction. 4. The fear of the divine dis 
pleasure ; a motive belonging to the religious sanction. On 
the first and last of these forces it has, perhaps, no influence 
worth insisting on : but it has on the other two. 

IX. The way in which a past robbery may weaken the force v iz. 
with which the political sanction tends to prevent a future suingfrom 

1 See ch. xi. [Dispositions], xl. 

2 To wit, in virtue of the pain it may give a man to be a witness to, or 
otherwise conscious of, the sufferings of a fellow-creature : especially when 
he is himself the cause of them : in a word, the pain of sympathy. See 
ch. v. [Pleasures and Pains], xxvi. 

156 Of the Consequences of a Mischievous Act. [CHAP. 

the political robbery, may be thus conceived. The way in which this sanc 
tion tends to prevent a robbery, is by denouncing some par 
ticular kind of punishment against any who shall be guilty of it : 
the real value of which punishment will of course be diminished 
by the real uncertainty : as also, if there be any difference, the 
apparent value by the apparent uncertainty. Now this uncer 
tainty is proportionably increased by every instance in which a 
man is known to commit the offence, without undergoing the 
punishment. This, of course, will be the case with every offence 
for a certain time ; in short, until the punishment allotted to it 
takes place. If punishment takes place at last, this branch of 
the mischief of the offence is then at last, but not till then, put 
a stop to. 

2. Those is- X. The way in which a past robbery may weaken the force 

suing from . J J 

the moral, with which the moral sanction tends to prevent a future robbery, 
may be thus conceived. The way in which the moral sanction 
tends to prevent a robbery, is by holding forth the indignation 
of mankind as ready to fall upon him who shall be guilty of it. 
Now this indignation will be the more formidable, according to 
the number of those who join in it : it will be the less so, the 
fewer they are who join in it. But there cannot be a stronger 
way of showing that a man does not join in whatever indignation 
may be entertained against a practice, than the engaging in it 
himself. It shows not only that he himself feels no indignation 
against it, but that it seems to him there is no sufficient reason 
for apprehending what indignation may be felt against it by 
others. Accordingly, where robberies are frequent, and un 
punished, robberies are committed without shame. It was thus 
amongst the Grecians formerly l . It is thus among the Arabs 

"erateb t0 ^ * n w ^ cnever wav tnen a P ast offence tends to pave the 
the influ- way for the commission of a future offence, whether by suggest- 
ampie. ing the idea of committing it, or by adding to the strength of 

1 See Horn. Odyss. L. xix. 1. 395 ; ib. L. iii. 1. 71. Plato de Rep. L. i. 
p. 576, edit. Ficin. Thucyd. L. i. and see B. I. tit. [Offences against 
external security]. 

xii.] Of the Consequences of a Mischievous Act. 157 

the temptation, in both cases it may be said to operate by the 
force or influence of example. 

XII. The two branches of the secondary mischief of an act, The alarm 
the alarm and the danger, must not be confounded : though ger, though 
intimately connected, they are perfectly distinct : either may are distin- 
subsist without the other. The neighbourhood may be alarmed gu 

with the report of a robbery, when, in fact, no robbery either 
has been committed or is in a way to be committed : a neigh 
bourhood may be on the point of being disturbed by robberies, 
without knowing any thing of the matter. Accordingly, we shall 
soon perceive, that some acts produce alarm without danger : 
others, danger without alarm. 

XIII. As well the danger as the alarm may again be divided, Both may 
each of them, into two branches : the first, consisting of so much 

of the alarm or danger as may be apt to result from the future others. r 
behaviour of the same agent : the second, consisting of so much 
as may be apt to result from the behaviour of other persons : 
such others, to wit, as may come to engage in acts of the same 
sort and tendency 1 . 

XIV. The distinction between the primary and the secondary The primary 
consequences of an act must be carefully attended to. It is so quences of 
just, that the latter may often be of a directly opposite nature to be mischiev- 
the former. In some cases, where the primary consequences of Sndary ie 
the act are attended with a mischief, the secondary consequences 
may be beneficial, and that to such a degree, as even greatly to 
outweigh the mischief of the primary. This is the case, for 
instance, with all acts of punishment, when properly applied. 
Of these, the primary mischief being never intended to fall 
but upon such persons as may happen to have committed some 
act which it is expedient to prevent, the secondary mischief, 
that is, the alarm and the danger, extends no farther than to 
such persons as are under temptation to commit it : in which 

1 To the former of these branches is opposed so much of the force of any 
punishment, as is said to operate in the way of reformation : to the latter, 
so much as is said to operate in the way of example. See ch. xiii. [Cases 
unmeet], par. ii. note. 

158 Of the Consequences of a Mischievous Act. [CHAP. 

case, in as far as it tends to restrain them from committing such 
acts, it is of a beneficial nature. 

mucn w ^ regard to acts that produce positive 

shapes in pain, and that immediately. This case, by reason of its sim- 

mischief of plicity, seemed the fittest to take the lead. But acts may pro- 

show itself, duce mischief in various other ways ; which, together with 

those already specified, may all be comprized by the following 

abridged analysis. 

Mischief may admit of a division in any one of three points 
of view. I. According to its own nature. 2. According to 
its cause. 3. According to the person, or other party, who is 
the object of it *. With regard to its nature, it may be either 
simple or complex 2 : when simple, it may either be positive or 
negative : positive, consisting of actual pain : negative, con 
sisting of the loss of pleasure. Whether simple or complex, and 
whether positive or negative, it may be either certain or contin 
gent. When it is negative, it consists of the loss of some benefit 
or advantage : this benefit may be material in both or either of 
two ways : I. By affording actual pleasure : or, 2. By averting 
pain or danger, which is the chance of pain : that is, by affording 
security. In as far, then, as the benefit which a mischief tends 
to avert, is productive of security, the tendency of such mischief 
is to produce insecurity. 2. With regard to its cause, mischief 
may be produced either by one single action, or not without the 
concurrence of other actions : if not without the concurrence of 
other actions, these others may be the actions either of the same 
person, or of other persons : in either case, they may be either 
acts of the same kind as that in question, or of other kinds. 
3. Lastly, with regard to the party who is the object of the 
mischief, or, in other words, who is in a way to be affected by | ( 
it, such party maybe either an assignable 3 individual, or assem- | l 

1 There may be other points of view, according to which mischief might 
be divided, besides these : but this does not prevent the division here given 
from being an exhaustive one. A line may be divided in any one of an 
infinity of ways, and yet without leaving in any one of those cases any 
remainder. See ch. xvi. [Division] i. note. 

3 Ch. v. [Pleasures and Pains] i. 

3 See ch. xvi. [Division] iv. note. 

xii.] Of the Consequences of a Mischievous Act. 159 

3lage of individuals, or else a multitude of unassignable indi 
viduals. When the object is an assignable individual, this 

ndividual may either be the person himself who is the author 
of the mischief, or some other person. When the individuals 
who are the objects of it, are an unassignable multitude, this 
multitude may be either the whole political community or state, 
or some subordinate division of it. Now when the object of the 
mischief is the author himself, it may be styled self-regarding : 
when any other party is the object, extra-regarding : when such 
other party is an individual, it may be styled private : when a 
subordinate branch of the community, semi-public : when the 
whole community, public. Here, for the present, we must stop. 
To pursue the subject through its inferior distinctions, will be 
the business of the chapter which exhibits the division of 
offences 1 . 

The cases which have been already illustrated, are those in applied to 
which the primary mischief is not necessarily otherwise than a ing 

simple one, and that positive : present, and therefore certain : 
producible by a single action, without any necessity of the con 
currence of any other action, either on the part of the same 
agent, or of others ; and having for its object an assignable in- 
dividual,or, by accident, anassemblageof assignable individuals : 
extra-regarding therefore, and private. This primary mischief 
is accompanied by a secondary : the first branch of which is 
sometimes contingent and sometimes certain, the other never 
otherwise than contingent : both extra-regarding and semi- 
public : in other respects, pretty much upon a par with the 
primary mischief : except that the first branch, viz. the alarm, 
though inferior in magnitude to the primary, is, in point of 
extent, and therefore, upon the whole, in point of magnitude, 
much superior. 

XVI. Two instances more will be sufficient to illustrate the -to exam- 
most material of the modifications above exhibited. cases where 

A man drinks a certain quantity of liquor, and intoxicates is econ 
himself . The intoxication in this particular instance does him Example I. 
1 Ch. xvi. 

i6o Of the Consequences of a Mischievous Act. [CHAP. 

Minntoxi n S0rt ^ ^ arm : or wnat comes to the same thing, none that is 
cation. perceptible. But it is probable, and indeed next to certain, that 
a given number of acts of the same kind would do him a very 
considerable degree of harm : more or less according to his con 
stitution and other circumstances : for this is no more than what 
experience manifests every day. It is also certain, that one act 
of this sort, by one means or other, tends considerably to increase 
the disposition a man may be in to practise other acts of the 
same sort : for this also is verified by experience. This, there 
fore, is one instance where the mischief producible by the act is 
contingent ? in other words, in which the tendency of the act is 
no otherwise mischievous than in virtue of its producing a chance 
of mischief. This chance depends upon the concurrence of other 
acts of the same kind ; and those such as must be practised by 
the same person. The object of the mischief is that very person 
himself who is the author of it, and he only, unless by accident. 
The mischief is therefore private and self-regarding. 

As to its secondary mischief, alarm, it produces none : it pro 
duces indeed a certain quantity of danger by the influence of 
example : but it is not often that this danger will amount to a 
quantity worth regarding. 

Non^ay- 11 XV II. Again. A man omits paying his share to a public 
mentor a tax. This we see is an act of the negative kind *. Is this then 
to be placed upon the list of mischievous acts ? Yes, certainly. 
Upon what grounds ? Upon the following. To defend the com 
munity against its external as well as its internal adversaries, 
are tasks, not to mention others of a less indispensable nature, 
which cannot be fulfilled but at a considerable expense. But 
whence is the money for defraying this expense to come ? It 
can. be obtained in no other manner than by contributions to be 
collected from individuals ; in a word, by taxes. The produce 
then of these taxes is to be looked upon as a kind of "benefit 
which itisnecessary the governing partof the community should 
receive for the use of the whole. This produce, before it can be 
applied to its destination, requires that there should be certain 
1 See ch. vii. [Actions] viii. 

xii.] Of the Consequences of a Mischievous Act. 161 

persons commissioned to receive and to apply it. Now if these 
persons, had they received it, would have applied it to its proper 
destination, it would have been a benefit : the not putting them 
in a way to receive it, is then a mischief. But it is possible, 
that if received, it might not have been applied to its proper 
destination ; or that the services, in consideration of which it 
was bestowed, might not have been performed. It is possible, 
that the under- officer, who collected the produce of the tax, 
might not have paid it over to his principal : it is possible that 
the principal might not have forwarded it on according to its 
farther destination ; to the judge, for instance, who is to protect 
the community against its clandestine enemies from within, or 
the soldier, who is to protect it against its open enemies from 
without : it is possible that the judge, or the soldier, had they 
received it, would not however have been induced by it to fulfil 
their respective duties : it is possible, that the judge would not 
have sat for the punishment of criminals, and the decision of 
controversies : it is possible that the soldier would not have 
drawn his sword in the defence of the community. These, 
together with an infinity of other intermediate acts, which for 
the sake of brevity I pass over, form a connected chain of duties, 
the discharge of which is necessary to the preservation of the 
community. They must every one of them be discharged, ere 
the benefit to which they are contributory can be produced. If 
they are all discharged, in that case the benefit subsists, and any 
act, by tending to intercept that benefit, may produce a mis 
chief. But if any of them are not, the benefit fails : it fails of 
itself : it would not have subsisted, although the act in question 
(the act of non-payment) had not been committed. The benefit 
is therefore contingent ; and, accordingly, upon a certain sup 
position, the act which consists in the averting of it is not a 
mischievous one. But this supposition, in any tolerably- ordered 
government, will rarely indeed be verified. In the very worst- 
ordered government that exists, the greatest part of the duties 
that are levied are paid over according to their destination : 
and, with regard to any particular sum, that is attempted to be 


Of the Consequences of a Mischievous Act. [CHAP. 

levied upon any particular person upon any particular occasion, 
it is therefore manifest, that, unless it be certain that it will not 
be so disposed of, the act of withholding it is a mischievous one. 
The act of payment, when referable to any particular sum, 
especially if it be a small one, might also have failed of proving 
beneficial on another ground : and, consequently, the act of non 
payment, of proving mischievous. It is possible that the same 
services, precisely, might havebeen rendered without the money 
as with it. If, then, speaking of any small limited sum, such as 
the greatest which any one person is called upon to pay at a 
time, a man were to say, that the non-payment of it would be 
attended with mischievous consequences; this would be far from 
certain : but what comes to the same thing as if it were, it is per 
fectly certain when applied to the whole. It is certain, that if 
all of a sudden the payment of all taxes was to cease, there would 
no longer be anything effectual done, either for the maintenance 
of justice, or for the defence of the community against its foreign 
adversaries : that therefore the weak would presently be oppressed 
and injured in all manner of ways, by the strong at home, and 
both together overwhelmed by oppressors from abroad. Upon 
the whole, therefore, it is manifest, that in this case, though the 
mischief is remote and contingent, though in its first appearance 
it consists of nothing more than the interception of a benefit, 
and though the individuals, in whose favour that benefit would 
have been reduced into the explicit form of pleasure or security, 
are altogether unassignable, yet the mischievous tendency of the 
act is not on all these accounts the less indisputable. The mis 
chief, in point of intensity and duration, is indeed unknown : it 
is uncertain : it is remote. But in point of extent it is immense ; 
and in point of fecundity, pregnant to a degree that baffles 

NO alarm, XVIII. It may now be time to observe, that it is only in the 

assfgnabie case where the mischief is extra-regarding, and has an assign- 

objeS! isthe able person or persons for its object, that so much of the 

secondary branch of it as consists in alarm can have place. 

When the individuals it affects are uncertain, and altogether out. 

xii.] Of the Consequences of a Mischievous Act. 163 

of sight, no alarm can be produced : as there is nobody whose 
sufferings you can see, there is nobody whose sufferings you can 
be alarmed at. No alarm, for instance, is produced by non 
payment to a tax. If at any distant and uncertain period of 
time such offence should chance to be productive of any kind of 
alarm, it would appear to proceed, as indeed immediately it 
would proceed, from a very different cause. It might be imme 
diately referable, for example, to the act of a legislator, who 
should deem it necessary to lay on a new tax, in order to make 
up for the deficiency occasioned in the produce of the old 
one. Or it might be referable to the act of an enemy, who, 
under favour of a deficiency thus created in the fund allotted 
for defence, might invade the country, and exact from it much 
heavier contributions than those which had been thus with- 
holden from the sovereign 1 . 

As to any alarm which such an offence might raise among the 
few who might chance to regard the matter with the eyes of 
statesmen, it is of too slight and uncertain a nature to be worth 
taking into the account. 

2. How Intentionally, &c. may influence the, mischief 
of an act. 

XIX. We have seen the nature of the secondary mischief, Secondary 
which is apt to be reflected, as it were, from the primary, in the 153 by 
cases where the individuals who are the objects of the mischief tile agent? 


1 The investigation might, by a process rendered obvious by analogy, be 
extended to the consequences of an act of a beneficial nature. In both 
instances a third order of consequences may be reckoned to have taken 
place, when the influence of the act, through the medium of the passive 
faculty of the patient, has come to affect his active faculty. In this way, 
I. Evil may flow out of evil : instance ; the exertions of industry put a 
stop to by the extinction of inducement, resulting from a continued chain 
of acts of robbery or extortion. 2. Good out of evil: instance; habits of 
depredation put a stop to by a steady course of punishment. 3. Evil out 
of good : instance; habits of industry put a stop to by an excessive course 
of gratuitous bounty. 4. Good out of good : instance ; a constant and 
increasing course of industry, excited and kept up by the rewards afforded 
by a regular and increasing market for the fruits of it. 

M 2 

164 Of the Consequences of a Mischievous Act. [CHAP. 

are assignable. It is now time to examine into the circumstances 
upon which the production of such secondary mischief depends. 
These circumstances are no others than the four articles which 
have formed the subjects of the four last preceding chapters : 
viz. i. The intentionality. 2. The consciousness. 3. The motive. 
4. The disposition. It is to be observed all along, that it is only 
the danger that is immediately governed by the real state of the 
mind in respect to those articles : it is by the apparent state of 
it that the alarm is governed. It is governed by the real only 
in as far as the apparent happens, as in most cases it may be 
expected to do, to quadrate with the real. The different in 
fluences of the articles of intentionality and consciousness may 
be represented in the several cases following. 
Casei. . XX. Case I. Where the act is so completely unintentional, 

Involun tan- r J 

ness. as to be altogether involuntary. In this case it is attended with 

no secondary mischief at all. 

A bricklayer is at work upon a house : a passenger is walking 
in the street below. A fellow-workman comes and gives the 
bricklayer a violent push, in consequence of which he falls upon 
the passenger, and hurts him. It is plain there is nothing in 
this event that can give other people, who may happen to be in 
the street, the least reason to apprehend any thing in future on 
the part of the man who fell, whatever there may be with regard 
to the man who pushed him. 

Case 2. XXI. Case 2. Where the act, though not unintentional, is un- 
tonaiity advised, insomuch that the mischievous part of the consequences 
lessness? " is unintentional, but the unadvisedness is attended with heedless- 
ness. In this case the act is attended with some small degree of 
secondary mischief, in proportion to the degree of heedlessness. 
A groom being on horseback, and riding through a frequented 
street, turns a corner at a full pace, and rides over a passenger, 
who happens to be going by. It is plain, by this behaviour of 
the groom, some degree of alarm may be produced, less or 
greater, according to the degree of heedlessness betrayed by 
him : according to the quickness of his pace, the fulness of the 
street, and so forth. He has done mischief, it may be said, by 

xii.] Of the Consequences of a Mischievous Act. 165 

his carelessness, already : who knows but that on otheroccasions 
the like cause may produce the like effect ? 

XXII. Case 3. Where the act is misadvised with respect to a case s- 
circumstance, which, had it existed, would fully have excluded or 5?w jSSe 
(what comes to the same thing) outweighed the primary mis- -Jvfthouf 10 " 
chief: and there is no rashness in the case. In this case the act rashness - 

is attended with no secondary mischief at all. 
It is needless to multiply examples any farther. 

XXIII. Case 4. Where the act is misadvised with respect to a Case 4. 
circumstance which would have excluded or counterbalanced the ^fpTtiaf 1 
primary mischief in part, but not entirely : and still there is no Khouf iollf 
rashness. In this case the act is attended with some degree of rashness< 
secondary mischief, in proportion to that part of the primary 

which remains unexcluded or uncounterbalanced. 

XXIV. Case 5. Where the act is misadvised with respect to Case 5. 

a circumstance, which, had it existed, would have excluded or wSsP 1 
counterbalanced the primary mischief entirely, or in part : and ness 
there is a degree of rashness in the supposal. In this case, the 
act is also attended with a farther degree of secondary mischief, 
in proportion to the degree of rashness. 

XXV. Case 6. Where the consequences are completely inten- case e. 
tional, and there is no missupposal in the case. In this case the " 
secondary mischief is at the highest. 

XXVI. Thus much with regard to intentionality and 

sciousness. We now come to consider in what manner the supposa 
secondary mischief is affected by the nature of the motive. of a motive 

Where an act is pernicious in its primary consequences, the away the 
secondary mischief is not obliterated by the goodness of the mo- fthemrif- 
tive ; though the motive be of the best kind. For, notwith- ~ 

standing the goodness of the motive, an act of which the primary 
consequences are pernicious, is produced by it in the instance in 
question, by the supposition. It may, therefore, in other in 
stances : although this is not so likely to happen from a good 
motive as from a bad one l . 

1 An act of homicide, for instance, is not rendered innocent, much less 
beneficial, merely by its proceeding from a principle of religion, of honour 

1 66 Of the Consequences of a Mischievous Act. [CHAP. 

Nor the XXVII. An act, which, though pernicious in its primary 

ness. consequences, is rendered in other respects beneficial upon the 

whole, by virtue of its secondary consequences, is not changed 

back again, and rendered pernicious upon the whole by the 

badness of the motive : although the motive be of the worst 

kind i. 

But it may XXVIII. But when not only the primary consequences of an 

aggravate . . 

the mis- act are pernicious, but, in other respects, the secondary likewise, 
ness, where the secondary mischief may be aggravated by the nature of the 
mischievous, motive : so much of that mischief, to wit, as respects the future 

behaviour of the same person. 
But not the XXIX. It is not from the worst kind of motive, however, 

most m the 

(that is, of love of reputation) or even of benevolence. When Ravaillac 
assassinated Henry IV. it was from a principle of religion. But this did 
not so much as abate from the mischief of the act. It even rendered the 
act still more mischievous, for a reason that we shall see presently, than if 
it had originated from a principle of revenge. When the conspirators 
against the late king of Portugal attempted to assassinate him, it is said 
to have been from a principle of honour. But this, whether it abated or 
no, will certainly not be thought to have outweighed, the mischief of the 
act. Had a son of Ravaillac s, as in the case before supposed *, merely on 
the score of filial affection, and not in consequence of any participation in 
his crime, put him to death in order to rescue him from the severer hands 
of justice, the motive, although it should not be thought to afford any 
proof of a mischievous disposition, and should, even in case of punishment, 
have made such rescuer an object of pity, would hardly have made the act 
of rescue a beneficial one. 

1 The prosecution of offences, for instance, proceeds most commonly 
from one or other, or both together, of two motives, the one of which is of 
the self -regarding, the other of the dissocial kind : viz. pecuniary interest, 
and ill-will : from pecuniary interest, for instance, whenever the obtaining 
pecuniary amends for damage suffered is one end of the prosecution. It is 
common enough indeed to hear men speak of prosecutions undertaken from 
public spirit; which is a branch, as we have seen 2 , of the principle of bene 
volence. Far be it from me to deny but that such a principle may very 
frequently be an ingredient in the sum of motives, by which men are 
engaged in a proceeding of this nature. But whenever such a proceeding 
is engaged in from the sole influence of public spirit, uncombined with the 
least tincture of self-interest, or ill-will, it must be acknowledged to be a 
proceeding of the heroic kind. Now acts of heroism are, in the very essence 
of them, but rare : for if they were common, they would not be acts of 
heroism. But prosecutions for crimes are very frequent, and yet, unless 
in very particular circumstances indeed, they are never otherwise than 

1 Ch. xi. [Disposition] xv. 2 See cli. x. [Motives] xxv. 

XIL] Of the Consequences of a Mischievous Act. 167 

that the secondary mischief of an act receives its greatest aggra- case of the 

, worst mo- 

vation. lives. 

XXX. The aggravation which the secondary mischief of an it does the 
act, in as far as it respects the future behaviour of the same more con- 
person, receives from the nature of a motive in an individual tendency of 6 
case, is as the tendency of the motive to produce, on the part of produce 
the same person, acts of the like bad tendency with that of the 8U 

act in question. 

XXXI. The tendency of a motive to produce acts of the like ^yhich is 
kind, on the part of any given person, is as the strength and strength and 
constancy of its influence on that person, as applied to the pro- c 
duction of such effects. 

XXXII. The tendency of a species of motive to give birth to General effi- 
acts of any kind, among persons in general, is as the strength, species of 
constancy, and extensiveness * of its influence, as applied to the JneSured? w 
production of such effects. 

XXXIII. Now the motives, whereof the influence is at once A mischiev- 
most powerful, most constant, and most extensive, are the mo- more so, 
tives of physical desire, the love of wealth, the love of ease, the fron?aseif- g 
love of life, and the fear of pain : all of them self-regarding Srfwhen 
motives. The motive of displeasure, whatever it may be in point 

of strength and extensiveness, is not near so constant in its in 
fluence (the case of mere antipathy excepted) as any of the other 
three. A pernicious act, therefore, when committed through 
vengeance, or otherwise through displeasure, is not near so mis 
chievous as the same pernicious act, when committed by force of 
any one of those other motives 2 . 

1 Ch. iv. [Value], 

2 It is for this reason that a threat, or other personal outrage, when com 
mitted on a stranger, in pursuance of a scheme of robbery, is productive of 
more mischief in society, and accordingly is, perhaps, every where more 
severely punished, than an outrage of the same kind offered to an acquaint 
ance, in prosecution of a scheme of vengeance. No man is always in a 
rage. But, at all times, every man, more or less, loves money. Accord 
ingly, although a man by his quarrelsomeness should for once have been 
engaged in a bad action, he may nevertheless remain a long while, or even 
his whole life-time, without engaging in another bad action of the same 
kind : for he may very well remain his whole life-time without engaging in 
so violent a quarrel : nor at any rate will he quarrel with more than one, 

1 68 Of the Consequences of a Mischievous Act, [CHAP. 
-so even XXXIV. As to the motive of religion, whatever it may 

when issu- .... * 

ing from the sometimes prove to be in point of strength and constancy, it is 

motive of ... r . , J 

religion. not in point oi extent so universal, especially in its application 
to acts of a mischievous nature, as any of the three preceding 
motives. It may, however, be as universal in a particular state, 
or in a particular district of a particular state. It is liable 
indeed to be very irregular in its operations. It is apt, however, 
to be frequently as powerful as the motive of vengeance, or 
indeed any other motive whatsoever. It will sometimes even 
be more powerful than any other motive. It is, at any rate, 
much more constant 1 . A pernicious act, therefore, when com 
mitted through the motive of religion, is more mischievous than 
when committed through the motive of ill-will. 

HOW the XXXV. Lastly, The secondary mischief, to wit, so much of it 
mischief is as hath respect to the future behaviour of the same person, is 


by disposi- aggravated or lessened by the apparent depravity or beneficence 
of his disposition : and that in the proportion of such apparent 
depravity or beneficence. 

Connexion XXXVI. The consequences we have hitherto been speaking 
the succeed- of , are the natural consequences, of which the act, and the other 
articles we have been considering, are the causes : consequences 
that result from the behaviour of the individual, who is the 
offending agent, without the interference of political authority. 
We now come to speak of punishment: which, in the sense in 

or a few people at a time. But if a man, by his love of money, has once 
been engaged in a bad action, such as a scheme of robbery, he may at any 
time, by the influence of the same motive, be engaged in acts of the same 
degree of enormity. For take men throughout, if a man loves money to a 
certain degree to-day, it is probable that he will love it, at least in equal 
degree, to-morrow. And if a man is disposed to acquire it in that way, he 
will find inducement to rob, wheresoever and whensoever there are people 
to be robbed. 

1 If a man happen to take it into his head to assassinate with his own 
hands, or with the sword of justice, those whom he calls heretics, that is, 
people who think, or perhaps only speak, differently upon a subject which 
neither party understands, he will be as much inclined to do this at one 
time as at another. Fanaticism never sleeps : it is never glutted : it is 
never stopped by philanthropy ; for it makes a merit of trampling on phi 
lanthropy : it is never stopped by conscience; for it has pressed conscience 
into its service. Avarice, lust, and vengeance, have piety, benevolence, 
honour ; fanaticism has nothing to oppose it. 

xii.] Of the Consequences of a Mischievous Act. 169 

which it is here considered, is an artificial consequence, annexed 
by political authority to an offensive act, in one instance ; in 
the view of putting a stop to the production of events similar 
to the obnoxious part of its natural consequences, in other 



I. General view of cases unmeet for punishment. 

iTwis n to f * THE S eneral object which all laws have, or ought to have, 
happiness in common > is to augment the total happiness of the community; 

and therefore, in the first place, to exclude, as far as may be, 

every thing that tends to subtract from that happiness : in other 

words, to exclude mischief. 

men? Sin*" IL But a11 P unisn ment is mischief : all punishment in itself 
evil. is evil. Upon the principle of utility, if it ought at all to be 

admitted, it ought only to be admitted in as far as it promises to 

exclude some greater evil 1 . 

Concerns J What follows, relative to the subject of punishment, ought regularly to 
l other ^e preceded by a distinct chapter on the ends of punishment. But having 
tpunish S, lii ^ e to sa y , on that P artic "lar branch of the subject, which has not been 
dismissed to said before, it seemed better, in a work, which will at any rate be but too 
other work, voluminous, to omit this title, reserving it for another, hereafter to be pub 
lished, intituled The Theory of Punishment \ To the same work I must 
refer the analysis of the several possible modes of punishment, a particular 
and minute examination of the nature of each, and of its advantages and 
disadvantages, and various other disquisitions, which did not seem abso 
lutely necessary to be inserted here. A very few words, however, concern 
ing the ends of punishment, can scarcely be dispensed with. 

fhe n ends v o e f wof ^ he immediate principal end of punishment is to control action. This 

punishment, action is either that of the offender, or of others : that of the offender it 

controls by its influence, either on his will, in which case it is said to 

operate in the way of reformation; or on his physical power, in which case 

1 This is the work which, from the Author s papers, has since been published by Mr. 
Duinont in French, in company with The Theory of Reward added to it, for the purpose of 
mutuaMllustratiori. It is in contemplation to publish them both in English, from the 
Author s manuscripts, with the benefit of any amendments that have been made by Mr 
Dumont. {Note to Edition of 1823.] 

several othe 

Cases Unmeet for Punishment. 171 

III. It is plain, therefore, that in the following cases punish- Therefore 

, , T n j i ought not to 

ment ought not to be inflicted. be admitted; 

1. Where it is Groundless: where there is no mischief for it 1 - Where 

. . groundless. 

to prevent ; the act not being mischievous upon the whole. 

2. Where it must be inefficacious: where it cannot act so as 2. ineffica- 

. ,, . , . . cious. 

to prevent the mischiet. 

3. Where it is unprofitable, or too expensive: where the s. Uuprofit- 
mischief it would produce would be greater than what it pre 

4. Where it is needless: where the mischief may be prevented, 4. Or need- 
or cease of itself, without it : that is, at a cheaper rate. 

2. Cases in which punishment is groundless. 

These are, 

IV. i. Where there has never been any mischief : where no i. Where 
mischief has been produced to any body by the act in question, never been 
Of this number are those in which the act was such as might, on chfef^as in 
some occasions, be mischievous or disagreeable, but the person consent. 
whose interest it concerns gave his consent to the performance of 

it l . This consent, provided it be free, and fairly obtained *, is 
the best proof that can be produced, that, to the person who 

it is said to operate by disablement : that of others it can influence no other 
wise than by its influence over their wills ; in which case it is said to ope 
rate in the way of example. A kind of collateral end, which it has a 
aatural tendency to answer, is that of affording a pleasure or satisfaction 
to the party inj ured, where there is one, and, in general, to parties whose 
11- will, whether on a self-regarding account, or on the account of sympathy 
3r antipathy, has been excited by the offence. This purpose, as far as it 
;an be answered gratis, is a beneficial one. But no punishment ought to 
36 allotted merely to this purpose, because (setting aside its effects in the 
| vay of control) no such pleasure is ever produced by punishment as can 
1 3e equivalent to the pain. The punishment, however, which is allotted to 
| -he other purpose, ought, as far as it can be done without expense, to be 
| iccommodated to this. Satisfaction thus administered to a party injured, 
I n the shape of a dissocial pleasure \ may be styled a vindictive satisfaction 
>r compensation : as a compensation, administered in the shape of a self- 
j egarding profit, or stock of pleasure, may be styled a lucrative one. See 
3. I. tit. vi. [Compensation]. Example is the most important end of all, 
* n proportion as the number of the persons under temptation to offend is to 

1 See B. I. tit. [Justifications]. 

i See ch, x. [Motives]. 


Cases Unmeet for Punishment. 


2. Where 
the mischief 
was out 
weighed: as 
in precau 
tion against 
and the 
exercise of 

3.-or will, 
for a cer 
tainty be 
cured by 

gives it, no mischief, at least no immediate mischief, upon the 
whole, is done. For no man can be so good a judge as the man 
himself, what it is gives him pleasure or displeasure. 

Vv 2. Where the mischief was outweighed : although a mis 
chief was produced by that act, yet the same act was necessary 
to the production of a benefit which was of greater value l than 
the mischief. This may be the case with any thing that is done 
in the way of precaution against instant calamity, as also with 
any thing that is done in the exercise of the several sorts of 
powers necessary to be established in every community, to wit, 
domestic, judicial, military, and supreme 2 . 

VI. 3. Where there is a certainty of an adequate compensa 
tion : and that in all cases where the offence can be committed. 
This supposes two things : i. That the offence is such as admits 
of an adequate compensation : 2. That such a compensation is 
sure to be forthcoming. Of these suppositions, the latter will be 
found to be a merely ideal one : a supposition that cannot, in 
the universality here given to it, be verified by fact. It cannot, 
therefore, in practice, be numbered amongst the grounds of 
absolute impunity. It may, however, be admitted as a ground 
for an abatement of that punishment, which other considerations, 
standing by themselves, would seem to dictate 3 . 

3 Cases in which punishment must be inefficacious. 

These are, 
I. i. Where the penal provision is not established until 

1 See supra, ch. iv. [Value]. 
* See Book I. tit. [Justifications]. 
Hence the 3 This, for example, seems to have been one ground, at least, of the 

theoffencr s n of favour shown by perhaps all systems of laws, to such offenders as stand 
responsible upon a footing of responsibility: shown, not directly indeed to thepersonsftj 
aSptemer- 1 themselves; but to such offences as none but responsible persons are likely L 
cantiie frauds, to have the opportunity of engaging in. In particular, this seems to be t . 
the reason why embezzlement, in certain cases, has not commonly been 
punished upon the footing of theft : nor mercantile frauds upon that of 

common sharping 

See tit. [Simple mere. Defraudment]. 

xiii. J Cases Unmeet for Punishment. 

after the act is done. Such are the cases, I. Of an ex-post-facto provision 
law ; where the legislator himself appoints not a punishment till Stef 
I after the act is done. 2. Of a sentence beyond the law ; where fact 
he judge, of his own authority, appoints a punishment which the i 
gislator had not appointed. 

VIII. 2. Where the penal provision, though established, is not 2. Or is 
onveyed to the notice of the person on whom it seems intended known? e as 

lat it should operate. Such is the case where the law 
mitted to employ any of the expedients which are necessary, 
ake sure that every person whatsoever, who is within the reach 
[ the law, be apprized of all the cases whatsoever, in which 
eing in the station of life he is in) he can be subjected to the 
enalties of the law 1 . 

IX. 3. Where the penal provision, though it were conveyed 3. where the 
o a man s notice, could produce no effect on him, with respect to be deterred 

le preventing him from engaging in any act of the sort in ques- act? as in, 
on. Such is the case, I. In extreme infancy; where a man [a] infancy, 
as not yet attained that state or disposition of mind in which 
le prospect of evils so distant as those which are held forth by 
le law, has the effect of influencing his conduct. 2. In insanity ; [b] insanity. 
T here the person, if he has attained to that disposition, has since 
een deprived of it through the influence of some permanent 
hough unseen cause. 3. In intoxication; where he has been [c] intoxi- 
iprived of it by the transient influence of a visible cause : such ca 
s the use of wine, or opium, or other drugs, that act in this 
lanner on the nervous system : which condition is indeed 
either more nor less than a temporary insanity produced by 
n assignable cause 2 . 

1 See B. II. Appendix, tit. iii. [Promulgation]. 

2 Notwithstanding what is here said, the cases of infancy and intoxication in infancy and 
vs we shall see hereafter) cannot be looked upon in practice as affording c^SKS 
ifficient grounds for absolute impunity. But this exception in point of be proved to 
ractice is no objection to the propriety of the rule in point of theory. rui 6 "" 

he ground of the exception is neither more nor less than the difficulty 
lere is of ascertaining the matter of fact : viz. whether at the requisite 
Dint of time the party was actually in the state in question ; that is, 
hether a given case comes really under the rule. Suppose the matter of 
ct capable of being perfectly ascertained, without danger or mistake, the 

174 Cases Unmeet for Punishment. [CHAP. 

4. or not X. 4. Where the penal provision (although, being conveyed 
dividual act to the party s notice, it might very well prevent his engaging in 
as S5JJ estton acts of the sort in question, provided he knew that it related to 

those acts) could not have this effect, with regard to the indi 
vidual act he is about to engage in : to wit, because he knows 
not that it is of the number of those to which the penal pro- 
ta] Uninten- vision relates. This may happen, i. In the case of unintention- 
ality ; where he intends not to engage, and thereby knows not 
that he is about to engage, in the act in which eventually he is 

[b] Uncon- about to engage 1 . 2. In the case of unconsciousness ; where, 

although he may know that he is about to engage in the act 
itself, yet, from not knowing all the material circumstances at 
tending it, he knows not of the tendency it has to produce that 
mischief, in contemplation of which it has been made penal in 

[c] Missup- most instances. 3. In the case of missupposal ; where, although 

he may know of the tendency the act has to produce that 
degree of mischief, he supposes it, though mistakenly, to be 
attended with some circumstance, or set of circumstances, which, 
if it had been attended with, it would either not have been 
productive of that mischief, or have been productive of such a 
greater degree of good, as has determined the legislator in such a 
case not to make it penal 2 . 

5. or is acted XI. 5. Where, though the penal clause might exercise a full 
oppsit?su- and prevailing influence, were it to act alone, yet by the pre- 
penor fo ;e : ^ om ^ nar ^ influence of some opposite cause upon the will, it must 

necessarily be ineffectual; because the evil which he sets himself 
about to undergo, in the case of his not engaging in the act, is so 

impropriety of punishment would be as indubitable in these cases as in any 

other l . 

The reason for The reason that is commonly assigned for the establishing an exemption 
hi th ese 1 three from punishment in favour of infants, insane persons, and persons under 
monf is com " n intoxication, is either false in fact, or confusedly expressed. The phrase is, 
"wrong"* 11 >0 " that the will of these persons concurs not with the act; that they have no 
footing. vicious will ; or, that they have not the free use of their will. But suppose 

all this to be true? What is it to the purpose ? Nothing: except in as 

far as it implies the reason given in the text. 

1 See ch. viii. [Intentionality]. 

2 See ch. ix. [Consciousness]. 

l See B. I. tit. iv. [Exemptions], and tit, vii. [Extenuations]. 

xiii.] Cases Unmeet for Punishment. 175 

great, that the evil denounced by the penal clause, in case of his 
engaging in it, cannot appear greater. This may happen, I. In [a] Physical 
the case of physical danger ; where the evil is such as appears 
likely to be brought about by the unassisted powers of nature. 
2. In the case of a threatened mischief; where it is such as [b] Threat- 
appears likely to be brought about through the intentional and c?ef. mii 
onscious agency of man 1 . 

XII. 6. Where (though the penal clause may exert a full and 6. or the 
re vailing influence over the will of the party) yet his physical sans cannot 

7 , f . ,, , . , . a -L , follow its de- 

aculties (owing to the predominant influence of some physical termination: 
ause) are not in a condition to follow the determination of the as 
: insomuch that the act is absolutely involuntary. Such is Physical 

. / compulsion 

ie case of physical compulsion or restraint, by whatever means <> r restraint, 
rought about ; where the man s hand, for instance, is pushed 
gainst some object which his will disposes him not to touch ; or 
ed down from touching some object which his will disposes him 
o touch. 

4. Cases where punishment is unprofitable. 
These are, 

XIII. I. Where, on the one hand, the nature of the offence, on i. Where, 
he other hand, that of the punishment, are, in the ordinary state S case Sn* 
/ things, such, that when compared together, the evil of the 

itter will turn out to be greater than that of the former. 

XIV. Now the evil of the punishment divides itself into four of 
inches, by which so many different sets of persons are affected. 

The evil of coercion or restraint : or the pain which it gives a cible b y 

. punishment 

ian not to be able to do the act, whatever it be, which by the its four 

, ., , , branches 

pprehension ot the punishment he is deterred from doing. This viz. [a] Re- 

1 The influences of the moral and religious sanctions, or, in other words, why the in- 
the motives of love of reputation and religion, are other causes, the force ^raund re 6 
which may, upon particular occasions, come to be greater than that of ifgious sanc- 
ly punishment which the legislator is able, or at least which he will think mfdoni in 
oper, to apply. These, therefore, it will be proper for him to have his th8 samo view - 
e upon. But the force of these influences is variable and different in and places: the force of the foregoing influences is constant 
id the same, at all times and every where. These, therefore, it can never 
) proper to look upon as safe grounds for establishing absolute impunity : 
ring (as in the above-mentioned cases of infancy and intoxication) to the 
ipracticability of ascertaining the matter of fact. 

Cases Unmeet for Punishment. 


b] Appre- 

[c] Suffer 

[d] Deriva 
tive evils. 

is felt by those by whom the law is observed. 2. The evil of 
apprehension : or the pain which a man, who has exposed him 
self to punishment, feels at the thoughts of undergoing it. This 
is felt by those by whom the law has been broken, and who feel 
themselves in danger of its being executed upon them. 3. The 
evil of sufferance 1 : or the pain which a man feels, in virtue of 
the punishment itself, from the time when he begins to undergo 
it. This is felt by those by whom the law is broken, and upon 
whom it comes actually to be executed. 4. The pain of sym 
pathy, and the other derivative evils resulting to the persons 
who are in connection with the several classes of original suf 
ferers just mentioned 2 . Now of these four lots of evil, the first 
will be greater or less, according to the nature of the act from 
which the party is restrained : the second and third according to 
the nature of the punishment which stands annexed to that 

XV. On the other hand, as to the evil of the offence, this will 
also, of course, be greater or less, according to the nature of each 
offence. The proportion between the one evil and the other will 
therefore be different in the case of each particular offence. The 
cases, therefore, where punishment is unprofitable on this ground, i 
can by no other means be discovered, than by an examination of 
each particular offence ; which is what will be the business of j 
the body of the work. 

XVI. 2. Where, although in the ordinary state of things, theft 
evil resulting from the punishment is not greater than the benefit fi 
which is likely to result from the force with which it operates,!; 
during the same space of time, towards the excluding the evil ofl 
the offences, yet it may have been rendered so by the influence of c; 
some occasional circumstances. In the number of these circum 

[a] The stances may be, I. The multitude of delinquents at a particular ir 

multitude of . , . , , .. . , . 

delinquents, juncture ; being such as would increase, beyond the ordinary 
measure, the quantum of the second and third lots, and thereby 
also of a part of the fourth lot, in the evil of the punishment.k 

(The evil of 
the offence 
being dif 
ferent, ac 
cording to 
the nature 
of the of 
fence, can 
not be re 

2. Or in the 
case in 
question : by 
reason of 

1 See ch. v. [Pleasures and Pains]. 
a See ch. xii. [Consequences] iv. 

xiii,] Cases Unmeet for Punishment. 177 

2. The extraordinary value of the services of some one delin- [b] The 
quent ; in the case where the effect of the punishment would delinquent s 
be to deprive the community of the benefit of those services. 

3. The displeasure of the people ; that is, of an indefinite number [c] The 

f . -i -. . . , . displeasure 

oi the members 01 the same community, in cases where (owing to of the 
the influence of some occasional incident) they happen to con- pe 
ceive, that the offence or the offender ought not to be punished at 
all, or at least ought not to be punished in the way in question. 

4. The displeasure of foreign powers ; that is, of the governing [d] The 
body, or a considerable number of the members of some foreign of 
community or communities, with which the community in ques- powers - 
tion is connected. 

5. Cases where punishment is needless. 

These are, 
XVII. i. Where the purpose of putting an end to the practice i. Where 

i . . , /v the mischief 

may be attained as effectually at a cheaper rate : by instruction, is to be 
for instance, as well as by terror : by informing the under- a cheaper a 
standing, as well as by exercising an immediate influence on the ra 
will. This seems to be the case with respect to all those offences By instruc- 
which consist in the disseminating pernicious principles in mat 
ters of duty ; of whatever kind the duty be ; whether political, 
r moral, or religious. And this, whether such principles be 
isseminated under, or even without, a sincere persuasion of 
heir being beneficial. I say, even without : for though in such 
. case it is not instruction that can prevent the writer from 
ndeavouring to inculcate his principles, yet it may the readers 
rom adopting them : without which, his endeavouring to incul- 
ate them will do no harm. In such a case, the sovereign will 
ommonly have little need to take an active part : if it be the 
aterest of one individual to inculcate principles that are per- 
icious, it will as surely be the interest of other individuals to 
xpose them. But if the sovereign must needs take a part in 
he controversy, the pen is the proper weapon to combat error 
rith, not the sword. 




Recapituia- I. WE have seen that the general object of all laws is to pre 
vent mischief ; that is to say, when it is worth while ; but that, 
where there are no other means of doing this than punishment, 
there are four cases in which it is not worth while. 

of l unish cts ^ When it is worth while, there are four subordinate designs 

ment. or objects, which, in the course of his endeavours to compass, as 
far as may be, that one general object, a legislator, whose views 
are governed by the principle of utility, comes naturally to pro 
pose to himself. 

ist object III. i. His first, most extensive, and most eligible object, is 

to prevent 

ail offences, to prevent, in as far as it is possible, and worth while, all sorts 
of offences whatsoever l : in other words, so to manage, that no 
offence whatsoever may be committed. 

2d Object IV. 2. But if a man must needs commit an offence of some 

to prevent ,., , , ,.. i i 

the worst, kind or other, the next object is to induce him to commit an 
offence less mischievous, rather than one more mischievous : in 
other words, to choose always the least mischievous, of two 
offences that will either of them suit his purpose. 

3d object- V. 3. When a man has resolved upon a particular offence, the 

down the next object is to dispose him to do no more mischief than is 
necessary to his purpose: in other words, to do as little mischief 1 
as is consistent with the benefit he has in view. 

4th Object- VI. 4. The last object is, whatever the mischief be, which it< 

to act at the . -, . , ., 7 

least is proposed to prevent, to prevent it at as cheap a rate as 

expense. .,, 


Rules of VII. Subservient to these four objects, or purposes, must be 


1 By offences I mean, at present, acts which appear to him to have a 
tendency to produce mischief. 

Proportion between Punishments and Offences. 179 

the rules or canons by which the proportion of punishments 1 tobetvveen 
offences is to be governed. Sentsand 

VIII. Rule i. i. The first object, it has been seen, is 
prevent, in as far as it is worth while, all sorts of offences ; 
therefore, tiie offence.* 

The value of the punishment must not be less in any case than 
what is sufficient to outweigh that of the profit 2 of the offence 3 . 

If it be, the offence (unless some other considerations, 
independent of the punishment, should intervene and operate 
efficaciously in the character of tutelary motives 4 ) will be 
sure to be committed notwithstanding 5 : the whole lot of 

1 The same rules (it is to be observed) may be applied, with little varia- The same rule 
tion, to rewards as well as punishment : in short, to motives in general, SffifiS to 
which, according as they are of the pleasurable or painful kind, are of the general. 
nature of reward or punishment : and, according as the act they are applied 

to produce is of the positive or negative kind, are styled impelling or re 
straining. See ch. x. [Motives] xliii. 

2 By the profit of an offence, is to be understood, not merely the pecu- Profit may be 
niary profit, but the pleasure or advantage, of whatever kind it be, which kfn a cT y a 0t w e ii a 
a man reaps, or expects to reap, from the gratification of the desire which pecuniary? 
prompted him to engage in the offence *. 

It is the profit (that is, the expectation of the profit) of the offence that impropriety of 
constitutes the impelling motive, or, where there are several, the sum of jJl XfchmSnt 
the impelling motives, by which a man is prompted to engage in the offence, ought n 15 " 
It is the punishment, that is, the expectation of the punishment, that con- tin" 
stitutes the restraining motive, which, either by itself, or in conjunction 
with others, is to act upon him in a contrary direction, so as to induce him 
to abstain from engaging in the offence. Accidental circumstances apart, 
the strength of the temptation is as the force of the seducing, that is, of 
the impelling motive or motives. To say then, as authors of great merit 
and great name have said, that the punishment ought not to increase with 
the strength of the temptation, is as much as to say in mechanics, that the 
moving force or momentum of the power need not increase in proportion to 
the momentum of the burthen. 

3 Beccaria, dei diletti, 6. id. trad. par. Morellet, 23. 

4 See ch. xi. [Dispositions] xxix. 

6 It is a well-known adage, though it is to be hoped not a true one, that 
every man has his price. It is commonly meant of a man s virtue. This 
saying, though in a very different sense, was strictly verified by some of 
the Anglo-Saxon laws : by which a fixed price was set, not upon a man s 
virtue indeed, but upon his life : that of the sovereign himself among the 
rest. For 200 shillings you might have killed a peasant : for six times aa 
much, a nobleman: for six-and- thirty times as much you might have killed 
the king 2 . A king in those days was worth exactly 7,200 shillings. If 
then the heir to the throne, for example, grew weary of waiting for it, he 
had a secure and legal way of gratifying his impatience: he had but to kill 

ith the 

1 See ch. x. [Motives] 1. 

2 Wilkius Leg. Anglo-Sax, p. 71, 72. See Hume, Vol. I, Apr- I. p. 219. 

N 2 

180 Of the Proportion between [CHAP. 

punishment will be thrown away : it will be altogether ineffi 
cacious 1 . 

priet pr oi ^ ^^ e a ^ ove ru ^ e nas keen often objected to, on account of 
stren 8 th h of * ts seem i n S harshness : but this can only have happened for want 
thetempta- of its being properly understood. The strength of the tempta- 
ground of tion, cceteris paribus, is as the profit of the offence : the quantum 

abatement, , . . , . .., ., Pj f ,, 

no objection of the. punishment must rise with the profit of the offence : 
e cceteris paribus, it must therefore rise with the strength of the 
temptation. This there is no disputing. True it is, that the 
stronger the temptation, the less conclusive is the indication 
which the act of delinquency affords of the depravity of the 
offender s disposition 2 . So far then as the absence of any 
aggravation, arising from extraordinary depravity of disposition, 
may operate, or at the utmost, so far as the presence of a ground 
of extenuation, resulting from the innocence orbeneficenceof the 
offender sdisposition,canoperate,thestrength of the temptation 
may operate in abatement of the demand for punishment. But 
it can never operate so far as to indicate the propriety of making 
the punishment ineffectual, which it is sure to be when brought 
below the level of the apparent profit of the offence. 

The partial benevolence which should prevail for the re 
duction of it below this level, would counteract as well those 
purposes which such a motive would actually have in view, as 
those more extensive purposes which benevolence ought to have 
in view : it would be cruelty not only to the public, but to the 

the king with one hand, and pay himself with the other, and all was right. 
An earl Godwin, or a duke Streon, could have bought the lives of a whole 
dynasty. It is plain, that if ever a king in those days died in his bed, he 
must have had something else, besides this law, to thank for it. This being 
the production of a remote and barbarous age, the absurdity of it is pre 
sently recognised : but, upon examination, it would be found, that the 
freshest laws of the most civilised nations are continually falling into the 
same error 1 . This, in short, is the case wheresoever the punishment is 
fixed while the profit of delinquency is indefinite : or, to speak more pre 
cisely, where the punishment is limited to such a mark, that the profit of 
delinquency may reach beyond it. 

1 See ch. xiii. [Cases unmeet], i . 

2 See ch. xi. [Dispositions], xlii. 

1 See in particular the English Statute laws throughout, Bonaparte s Penal Code, and 
the recently enacted or not enacted Spanish Penal Code. Note by the Author, July 1822. 

xiv.] Punishments and Offences. 181 

very persons in whose behalf it pleads : in its effects, I mean, 
however opposite in its intention. Cruelty to the public, that is 
cruelty to the innocent, by suffering them, for want of an ade 
quate protection, to lie exposed to the mischief of the offence : 
cruelty even to the offender himself, by punishing him to no 
purpose, and without the chance of compassing that beneficial 
end, by which alone the introduction of the evil of punishment 
is to be justified. 

X. Rule 2. But whether a given offence shall be prevented Rule 2. 
in a given degree by a given quantity of punishment, is never more against 
any thing better than a chance ; for the purchasing of which, ofSnce than 
whatever punishment is employed, is so much expended i n asmall( 
advance. However, for the sake of giving it the better chance 

of outweighing the profit of the offence, 

The greater the mischief of the offence, the greater is the ex 
pense, which it may be worth while to be at, in the way of 
punishment l . 

XI. Rule 3. The next object is, to induce a man to choose Rules, 
always the least mischievous of two offences ; therefore st e of two 

Where two offences come in competition, the punishment for the bfpreferred. 
greater offence must be sufficient to induce a man to prefer the 
less 2 . 

XII. Rule 4. When a man has resolved upon a particular R U i e 4 
offence, the next object is, to induce him to do no more mischief Spa/Sie 
than what is necessary for his purpose : therefore mischief. 

The punishment should be adjusted in such manner to each 
particular offence, that for every part of the mischief there may 
be a motive to restrain the offender from giving birth to it 3 . 

1 For example, if it can ever be worth while to be at the expense of so Example. 
horrible a punishment as that of burning alive, it will be more so in the andTolnlng-? 1 
view of preventing such a crime as that of murder or incendiarism, than in 

the view of preventing the uttering of a piece of bad money. See B. I. tit. 
[Defraudment touching the Coin] and [Incendiarism]. 

2 Espr. des Loix, L. vi. c. 16. 

3 If any one have any doubt of this, let him conceive the offence to be Example. 
divided into as many separate offences as there are distinguishable parcels andmone given 
of mischief that result from it. Let it consist, for example, in a man s stolen, 
giving you ten blows, or stealing from you ten shillings. If then, for giving 

you ten blows, he is punished no more than for giving you five, the giving 


1 82 Of the Proportion between [CHAP. 

Rules. XIII. Rule 5. The last object is, whatever mischief is 
guarded against, to guard against it at as cheap a rate as 

special possible i therefore 

The punishment ought in no case to be more than what is 
necessary to bring it into conformity with the rules here given. 
Rule 6. XIV. Rule 6. It is further to be observed, that owing to the 
circum- different manners and degrees in which persons under different 

circumstances are affected by the same exciting cause, a punish- 
lllty ment which is the same in name will not always either really 
produce, or even so much as appear to others to produce, in two 
different persons the same degree of pain : therefore 

That the quantity actually inflicted on each individual offender 
may correspond to the quantity intended for similar offenders in 
general, the several circumstances influencing sensibility ought 
ahvays to be taken into account l . 

Comparative XV. Of the above rules of proportion, the four first, we may 
aifwe rules. perceive, serve to mark out the limits on the side of diminution ; 
the limits below which a punishment ought not to be dimi 
nished : the fifth, the limits on the side of increase ; the limits 
above which it ought not to be increased. The five first are 
calculated to serve as guides to the legislator : the sixth is cal 
culated, in some measure, indeed, for the same purpose ; but 
principally for guiding the judge in his endeavours to conform, 
on both sides, to the intentions of the legislator. 

into the XVI. Let us look back a little. The first rule, in order to 
ESueof a render it more conveniently applicable to practice, may need 
must be 1611 * perhaps to be a little more particularly unfolded. It is to be 

you five of these ten blows is an offence for which there is no punishment 
at all : which being understood, as often as a man gives you five blows, he 
will be sure to give you five more, since he may have the pleasure of giving 
you these five for nothing. In like manner, if for stealing from you ten 
shillings, he is punished no more than for stealing five, the stealing of the 
remaining five of those ten shillings is an offence for which there is no 
punishment at all. This rule is violated in almost every page of every body 
of laws I have ever seen. 

The profit, it is to be observed, though frequently, is not constantly, pro 
portioned to the mischief : for example, where a thief, along with the things 
he covets, steals others which are of no use to him. This may happen 
through wantonness, indolence, precipitation, &c. &c. 

1 See ch. vi. [Sensibility]. 

xiv.] Punishments and Offences. 183 

observed, then, that for the sake of accuracy, it was necessary, taken its 

y . J deficiency in 

instead of the word quantity to make use of the less perspicuous pomt of 
term value. For the word quantity will not properly include and 

. . . proximity. 

the circumstances either of certainty or proximity : circum 
stances which, in estimating the value of a lot of pain or plea 
sure, must always be taken into the account 1 . Now, on the one 
hand, a lot of punishment is a lot of pain ; on the other hand, 
the profit of an offence is a lot of pleasure, or what is equivalent 
to it. But the profit of the offence is commonly more certain 
than the punishment, or, what comes to the same thing, appears 
so at least to the offender. It is at any rate commonly more 
immediate. It follows, therefore, that, in order to maintain its 
superiority over the profit of the offence, the punishment must 
have its value made up in some other way, in proportion to that 
whereby it falls short in the two points of certainty and prox 
imity. Now there is no other way in which it can receive any 
addition to its value, but by receiving an addition in point of 
magnitude. Wherever then the value of the punishment falls 
short, either in point of certainty, or of proximity, of that of 
the profit of the offence, it must receive a proportionable 
addition in point of magnitude 2 . 

XVII. Yet farther. To make sure of giving the value of the Aiso^nto^ 
punishment the superiority over that of the offence, it may be of the 
necessarv in some cases, to take into the account the profit not and profit of 

J . , . . . , the offence, 

onlv of the individual offence to which the punishment is to be the mischief 

. r 1 1 j.1 and profit of 

annexed x but also of such other offences of the same sort as the other 
offender is likely to have already committed without detection, the same 
This random mode of calculation, severe as it is, it will be im- ha 
possible to avoid having recourse to, in certain cases : in such, to 
wit, in which the profit is pecuniary, the chance of detection 
very small, and the obnoxious act of such a nature as indicates 
a habit : for example, in the case of frauds against the coin. If 
it be not recurred to, the practice of committing the offence will 
be sure to be, upon thebalance of the account, a gainful practice. 

1 See ch. iv. [Value]. 

2 It is for this reason, for example, that simple compensation is never 
looked upon as sufficient punishment for theft or robbery. 

184 Of the Proportion betiveen [CHAP. 

That being the case, the legislator will be absolutely sure of 
not being able to suppress it, and the whole punishment that 
is bestowed upon it will be thrown away. In a word (to keep 
to the same expressions we set out with) that whole quantity 
of punishment will be inefficacious. 

Rule 7. XVIII. Rule 7. These things being considered, the three 
certainty following rules may be laid down by way of supplement and 

must be i ,. -r, -, 

made up in explanation to Rule I. 

To enable the value of the punishment to outweigh that of the 
profit of the offence, it must be increased, in point of magnitude, 
in proportion as it falls short in point of certainty. 

XIX. Rule 8. Punishment must be further increased in point 
. of magnitude, in proportion as it falls short in point of proximity. 
Rule 9. XX. Rule g. Where the act is conclusively indicative of a 

For acts T. r. . T. 7 -,. 

indicative of fiaoit, such an increase must be given to the punishment as may 
punish as enable it to outweigh the profit not only of the individual offence, 
habit? but of such other like offences as are likely to have been committed 

with impunity by the same offender. 
The remain- XXI. There may be a few other circumstances or considera- 

ing rules are , , . -. . n 

of less tions which may influence, in some small degree, the demand 
e for punishment : but as the propriety of these is either not so 
demonstrable, or not so constant, or the application of them not 
so determinate, as that of the foregoing, it may be doubted 
whether they be worth putting on a level with the others. 
XXIIt Rule I0 - Wfon a punishment, which in point of 
tiy is particularly well calculated to answer its intention, 
quantity, cannot exist in less than a certain quantity, it may sometimes be 
of use, for the sake of employing it, to stretch a little beyond that 
quantity which, on other accounts, would be strictly necessary. 
Pa?ticu?ari X XIII. Rule II. In particular, this may sometimes be the case, 
for a moral where the punishment proposed is of such a nature as to be par 
ticularly well calculated to answer the purpose of a moral lesson 1 . 

applied by way * A P unishmen *> may be said to be calculated to answer the purpose of a 
of moral lesson, moral lesson,when,byreason of the ignominy it stamps upon the offence, it 
is calculated to inspire the public with sentiments of aversion towards those 
pernicious habits and dispositions with which the offence appears to be 
connected ; and thereby to inculcate the opposite beneficial habits and 

xiv. J Punishments and Offences. 185 

XXIV. Rule 12. The tendency of the above considerations is Rule 12. 
to dictate an augmentation in the punishment : the following circum- 
rule operates in the way of diminution. There are certain cases which may 
(it has been seen l ] in which, by the influence of accidental cir- punishment 
cumstances, punishment may be rendered unprofitable in theST 3 
whole : in the same cases it may chance to be rendered unpro 
fitable as to a part only. Accordingly, 

In adjusting the quantum of punishment, the circumstances , 
by which all punishment may be rendered unprofitable, ought to 
be attended to. 

XXV. Rule 13. It is to be observed, that the more various Rule 13. 
and minute any set of provisions are, the greater the chance is 

that any given article in them will not be borne in mind : with- 

out which, no benefit can ensue from it. Distinctions, which are negieSei be 

more complex than what the conceptions of those whose conduct 

it is designed to influence can take in, will even be worse than 

useless. The whole system will present a confused appearance : 

and thus the effect, not only of the proportions established by 

the articles in question, but of whatever is connected with them, 

will be destroyed 2 . To draw a precise line of direction in such 

case seems impossible. However, by way of memento, it may 

be of some use to subjoin the following rule. 

Among provisions designed to perfect the proportion between 
punishments and offences, if any occur, which, by their own par 
ticular good effects, would not make up for the harm they would 
do by adding to the intricacy of the Code, they should be omitted*. 

It is this, for example, if any thing, that must justify the application of Example. 
so severe a punishment as the infamy of a public exhibition, hereinafter p^"^^. 
proposed, for him who lifts up his hand against a woman, or against his 
father. See B. I. tit. [Simp, corporal injuries]. 

It is partly on this principle, I suppose, that military legislators have Example- 
justified to themselves the inflicting death on the soldier who lifts up his [a W ilitary 
hand against his superior officer. 

1 See ch. xiii. [Cases unmeet], 4. 

8 See B. II. tit. [Purposes], Append, tit. [Composition]. 

8 Notwithstanding this rule, my fear is, that in the ensuing model, I Proportionality 
may be thought to have carried my endeavours at proportionality too far. JnThe d P resent r 
Hitherto scarce any attention has been paid to it. Montesquieu seems to work-why, 
have been almost the first who has had the least idea of any such thing. 
In such a matter, therefore, excess seemed more eligible than defect. The 

1 86 Of the Proportion between [CHAP. 

Auxiliary XXVI. It may be remembered, that the political sanction, 
physical, being that to which the sort of punishment belongs, which in 

moral, and . . . ,, , . . . , P P 

reiigi9us this chapter is all along in view, is but one of four sanctions, 
here affiwed which may all of them contribute their share towards producing 
Wly the same effects. It may be expected, therefore, that in adjusting 
the quantity of political punishment, allowance should be made 
for the assistance it may meet with from those other controlling 
powers. True it is, that from each of these several sources a very 
powerful assistance may sometimes be derived. But the case is, 
that (setting aside the moral sanction, in the case where the force 
of it is expressly adopted into and modified by the political 1 ) the 
force of those other powers is never determinate enough to be 
depended upon. It can never be reduced, like political punish 
ment, into exact lots, nor meted out in number, quantity, and 
value. The legislator is therefore obliged to provide the full 
complement of punishment, as if he were sure of not receiving 
any assistance whatever from any of those quarters. If he does, 
so much the better : but lest he should not, it is necessary he 
should, at all events, make that provision which depends upon 

Becapituia- XXVII. It may be of use, in this place, to recapitulate the 
several circumstances, which, in establishing the proportion be 
twixt punishments and offences, are to be attended to. These 
seem to be as follows : 
I. On the part of the offence : 

1. The profit of the offence ; 

2. The mischief of the offence ; 

3. The profit and mischief of other greater or lesser offences, 

of different sorts, which the offender may have to choose 
out of ; 

4. The profit and mischief of other offences, of the same 

sort, which the same offender may probably have been 
guilty of already. 

difficulty is to invent : that done, if any thing seems superfluous, it is easy 
to retrench. 

1 See B. I. tit. [Punishments]. 

xiv.] Punishments and Offences. 187 

II. On the part of the punishment : 

5. The magnitude of the punishment : composed of its 

intensity and duration ; 

6. The deficiency of the punishment in point of certainty ; 

7. The deficiency of the punishment in point of proximity ; 

8. The quality of the punishment ; 

9. The accidental advantage in point of quality of a punish 

ment, not strictly needed in point of quantity ; 

10. The use of a punishment of a particular quality, in the 

character of a moral lesson. 

III. On the part of the offender : 

11. The responsibility of the class of persons in a way to 

offend ; 

12. The sensibility of each particular offender ; 

13. The particular merits or useful qualities of any parti 

cular offender, in case of a punishment which might 
deprive the community of the benefit of them ; 

14. The multitude of offenders on any particular occasion. 
[V. On the part of the public, at any particular conjuncture : 

15. The inclinations of the people, for or against any quantity 

or mode of punishment ; 

16. The inclinations of foreign powers. 

V. On the part of the law : that is, of the public for a con 
tinuance : 

17. The necessity of making small sacrifices, in point of 

proportionality, for the sake of simplicity. 

XXVIII. There are some, perhaps, who, at first sight, may The nicety 
look upon the nicety employed in the adjustment of such rules, observed 
as so much labour lost : for gross ignorance, they will say, never frSthf 
troubles itself about laws, and passion does not calculate. But 
the evil of ignorance admits of cure l : and as to the proposi 
tion that passion does not calculate, this, like most of these very 
general and oracular propositions, is not true. When matters 
)f such importance as pain and pleasure are at stake, and these 
n the highest degree (the only matters, in short, that can be of 

1 See Append, tit. [Promulgation], 

1 88 Proportion between Punishments and Offences. 

importance) who is there that does not calculate ? Men calcu 
late, some with less exactness, indeed, some with more : but all 
men calculate. I would not say, that even a madman does not 
calculate \ Passion calculates, more or less, in every man : in 
different men, according to the warmth or coolness of their dis 
positions : according to the firmness or irritability of their minds : 
according to the nature of the motives by which they are acted 
upon. Happily, of all passions, that is the most given to calcu 
lation, from the excesses of which, by reason of its strength, 
constancy, and universality, society has most to apprehend 2 : 
I mean that which corresponds to the motive of pecuniary 
interest : so that these niceties, if such they are to be called, 
have the best chance of being efficacious, where efficacy is of 
the most importance. 

1 There are few madmen but what are observed to be afraid of the strait 

2 See ch. xii. [Consequences], xxxiii. 



I. IT has been shown what the rules are, which ought to be Properties 
observed in adjusting the proportion between the punishment governed by 
and the offence. The properties to be given to a lot of punish- p 
ment, in every instance, will of course be such as it stands in 

need of, in order to be capable of being applied, in conformity to 
those rules : the quality will be regulated by the quantity. 

II. The first of those rules, we may remember, was, that the Property i. 
quantity of punishment must not be less, in any case, than what Va 

is sufficient to outweigh the profit of the offence : since, as often 
as it is less, the whole lot (unless by accident the deficiency should 
be supplied from some of the other sanctions) is thrown away : it 
is inefficacious. The fifth was, that the punishment ought in no 
case to be more than what is required by the several other rules : 
since, if it be, all that is above that quantity is needless. The 
fourth was, that the punishment should be adjusted in such 
manner to each individual offence, that every part of the mischief 
of that offence may have a penalty (that is, a tutelary motive) to 
encounter it : otherwise, with respect to so much of the offence 
as has not a penalty to correspond to it, it is as if there were no 
punishment in the case. Now to none of those rules can a lot of 
punishment be conformable, unless, for every variation in point 
of quantity, in the mischief of the species of offence to which it 
is annexed, such lot of punishment admits of a correspondent 
variation. To prove this, let the profit of the offence admit of 
i multitude of degrees. Suppose it, then, at any one of these 
legrees : if the punishment be less than what is suitable to that 
legree, it will be inefficacious ; it will be so much thrown away : 

190 Of the Properties to be given to [CHAP. 

if it be more, as far as the difference extends, it will be needless ; 
it will therefore be thrown away also in that case. 

The first property, therefore, that ought to be given to a lot 
of punishment, is that of being variable in point of quantity, 
in conformity to every variation which can take place in either 
the profit or mischief of the offence. This property might, 
perhaps, be termed, in a single word, variability. 

Equabmty ^ ^ secon ^ property, intimately connected with the former, 
may be styled equability. It will avail but little, that a mode of 
punishment (proper in all other respects) has been established 
by the legislator ; and that capable of being screwed up or let 
down to any degree that can be required ; if, after all, whatever 
degree of it be pitched upon, that same degree shall be liable, 
according to circumstances, to produce a very heavy degree of 
pain, or a very slight one, or even none at all. In this case, as 
in the former, if circumstances happen one way, there will be 
a great deal of pain produced which will be needless : if the 
other way, there will be no pain at all applied, or none that will 
be efficacious. A punishment, when liable to this irregularity, 
may be styled an unequable one : when free from it, an equable 
one. The quantity of pain produced by the punishment will, it 
is true, depend in a considerable degree upon circumstances 
distinct from the nature of the punishment itself : upon the 
condition which the offender is in, with respect to the circum 
stances by which a man s sensibility is liable to be influenced. 
But the influence of these very circumstances will in many cases 
be reciprocally influenced by the nature of the punishment : in 
other words, the pain which is produced by any mode of punish 
ment, will be the joint effect of the punishment which is applied 
to him, and the circumstances in which he is exposed to it. Now 
there are some punishments, of which the effect may be liable to 
undergo a greater alteration by the influence of such foreign 
circumstances, than the effect of other punishments is liable to 
undergo. So far, then, as this is the case, equability or un- 
equability may be regarded as properties belonging to the 
punishment itself. 

xv.] a Lot of Punishment. 191 

IV. An example of a mode of punishment which is apt to be Punisk- 
unequable, is that of banishment, when the locus a quo (or place are apt to 
the party is banished from) is some determinate place appointed in this 
by the law, which perhaps the offender cares not whether he iei 
ever see or no. This is also the case with pecuniary, or quasi- 
pecuniary punishment, when it respects some particular species 

of property, which the offender may have been possessed of, or 
not, as it may happen. All these punishments may be split 
down into parcels, and measured out with the utmost nicety : 
being divisible by time, at least, if by nothing else. They are 
not, therefore, any of them defective in point of variability : 
and yet, in many cases, this defect in point of equability may 
make them as unfit for use as if they were 1 . 

V. The third rule of proportion was, that where two offences Property 3. 
come in competition, the punishment for the greater offence SSiTty to 
must be sufficient to induce a man to prefer the less. Now, to punlsh- 

be sufficient for this purpose, it must be evidently and uniformly ments - 
greater : greater, not in the eyes of some men only, but of all 
men who are liable to be in a situation to take their choice 
between the two offences ; that is, in effect, of all mankind. In 
other words, the two punishments must be perfectly commen 
surable. Hence arises a third property, which may be termed 
commensurability : to wit, with reference to other punishments 2 . 

VI. But punishments of different kinds are in very few in- HOW two 
stances uniformly greater one than another ; especially when punishment 
the lowest degrees of that which is ordinarily the greater, 

1 By the English law, there are several offences which are punished by a 
total forfeiture of moveables, not extending to immoveables. This is the 
case with suicide, and with certain species of theft and homicide. In some 
cases, this is the principal punishment: in others, even the only one. The 
consequence is, that if a man s fortune happens to consist in moveables, he 
is ruined ; if in immoveables, he suffers nothing. 

2 See View of the Hard- Labour Bill, Lond. 1778, p. 100. 

For the idea of this property, I must acknowledge myself indebted to an 
anonymous letter in the St. James s Chronicle, of the 27th of September, 
1777 ; the author of which is totally unknown to me. If any one should 
be disposed to think lightly of the instruction, on account of the channel 
by which it was first communicated, let him tell me where I can find an 
idea more ingenious or original. 

Of the Properties to be given to [CHAI*. 

perfectly compared with the highest degrees of that which is ordinarily 

commen- r 

surabie. the less : in other words, punishments of different kinds are in 
few instances uniformly commensurable. The only certain and 
universal means of making two lots of punishment perfectly 
commensurable, is by making the lesser an ingredient in the 
composition of the greater. This may be done in either of two 
ways. I . By adding to the lesser punishment another quantity 
of punishment of the same kind. 2. By adding to it another 
quantity of a different kind. The latter mode is not less certain 
than the former : for though one cannot always be absolutely 
sure, that to the same person a given punishment will appear 
greater than another given punishment ; yet one may be always 
absolutely sure, that any given punishment, so as it does but 
come into contemplation, will appear greater than none at all. 

pEcter 4 VII. Again : Punishment cannot act any farther than in as 

isticainess. f ar ag ne idea of it, and of its connection with the offence, is 
present in the mind. The idea of it, if not present, cannot act 
at all ; and then the punishment itself must be inefficacious. 
Now, to be present, it must be remembered, and to be remem 
bered it must have been learnt. But of all punishments that 
canbe imagined, there are none of which the connection with the 
offence is either so easily learnt, or so efficaciously remembered, 
as those of which the idea is already in part associated with 
some part of the idea of the offence : which is the case when the 
one and the other have some circumstance that belongs to them 
in common. When this is the case with a punishment and an 
offence, the punishment is said to bear an analogy to, or to be 
characteristic of, the offence 1 . Characteristicalness is, therefore, 
a fourth property, which on this account ought to be given, 
whenever it can conveniently be given, to a lot of punishment. 

The mode of VIII. It is obvious, that the effect of this contrivance will be 


eminent! ^ e 8 reater as *^ e ana lg v is the closer. The analogy will be 
character- the closer, the more material 2 that circumstance is, which is in 

1 See Montesq. Esp. des Loix, L. xii. ch. iv. He seems to have the 
property of Characteristicalness in view ; but that the idea he had of it was 
very indistinct, appears from the extravagant advantages he attributes to it. 

2 See ch. vii. [Actions], iii. 

xv.] a Lot of Punishment. 193 

common. Now the most material circumstance that can belong istic, is that 
to an offence and a punishment in common, is the hurt or damage tiorf. 
which they produce. The closest analogy, therefore, that can 
subsist between an offence and the punishment annexed to it, is 
that which subsists between them when the hurt or damage they 
produce is of the same nature : in other words, that which is 
constituted by the circumstance of identity in point of damage 1 . 
Accordingly, the mode of punishment, which of all others bears 
the closest analogy to the offence, is that which in the proper 
and exact sense of the word is termed retaliation. Retaliation, 
therefore, in the few cases in which it is practicable, and not too 
expensive, will have one great advantage over every other mode 
of punishment. 

IX. Again : It is the idea only of the punishment (or, in Property 5. 
other words, the apparent punishment) that really acts upon the piarity. 
mind ; the punishment itself (the real punishment) acts not any 
farther than as giving rise to that idea. It is the apparent 
punishment, therefore, that does all the service, I mean in the 
way of example, which is the principal object 2 . It is the real 
punishment that does all the mischief 3 . Now the ordinary and 
obvious way of increasing the magnitude of the apparent punish 
ment, is by increasing the magnitude of the real. The apparent 
magnitude, however, may to a certain degree be increased by 
other less expensive means : whenever, therefore, at the same 
time that these less expensive means would have answered that 
purpose, an additional real punishment is employed, this addi 
tional real punishment is needless. As to these less expensive 
means, they consist, I. In the choice of a particular mode of 
punishment, a punishment of a particular quality, indepen 
dent of the quantity 4 . 2. In a particular set of solemnities 
distinct from the punishment itself, and accompanying the 
execution of it 5 . 

1 Besides this,there are a variety of other ways in which the punishment 
may bear an analogy to the offence. This will be seen by looking over the 
table of punishments. 

2 See ch. xiii. [Cases unmeet], 1,2. note. 3 Ib. 4. par. iii. 
4 See B. I. tit. [Punishments]. 6 See B. II. tit. [Execution]. 


194 Of the Properties to be given to [CHAP. 

The most X. A mode of punishment, according as the appearance of it 
way of bears a greater proportion to the reality, may be said to be the 
punishment more exemplary. Now as to what concerns the choice of the 

exemplary is . , . ., , r ,, . , , . ., 

by means of punishment itself, there is not any means by which a given 
quantity of punishment can be rendered more exemplary, than 
by choosing it of such a sort as shall bear an analogy to the 
offence. Hence another reason for rendering the punishment 
analogous to, or in other words characteristic of, the offence. 
Property c. XI. Punishment, it is still to be remembered, is in itself an 
expense : it is in itself an evil 1 . Accordingly the fifth rule of 
proportion is, not to produce more of it than what is demanded 
by the other rules. But this is the case as often as any particle 
of pain is produced, which contributes nothing to the effect pro 
posed. Now if any mode of punishment is more apt than 
another to produce any such superfluous and needless pain, it 
may be styled unfrugal ; if less, it may be styled frugal. Fru 
gality, therefore, is a sixth property to be wished for in a mode 
of punishment. 

b^ion^m ^^ ^ e perfection of frugality, in a mode of punishment, is 
perfection to where not only no superfluous pain is produced on the part of 
punishment, the person punished, but even that same operation, by which he 
is subjected to pain, is made to answer the purpose of producing 
pleasure on the part of some other person. Understand a profit 
or stock of pleasure of the self-regarding kind : for a pleasure of 
the dissocial kind is produced almost of course, on the part of 
all persons in whose breasts the offencehas excited the sentiment 
of ill-will. Now this is the case with pecuniary punishment, as 
also with such punishments of the quasi-pecuniary kind as con 
sist in the subtraction of such a species of possession as is trans 
ferable from one party to another. The pleasure, indeed, pro 
duced by such an operation, is not in general equal to the pain 2 : 
it may, however, be so in particular circumstances, as where he, 
from whom the thing is taken, is very rich, and he, to whom it 
is given, very poor: and, be it what it will, it is always so much 
more than can be produced by any other mode of punishment. 
1 Ch. xiii. [Cases unmeet], par. iii. 2 Ib. note. 

xv.] a Lot of Punishment. 195 

XIII. The properties of exemplarity and frugality seem to Exempiarity 
pursue the same immediate end, though by different courses, frugality, in 
Both are occupied in diminishing the ratio of the real suffering differ and 
to the apparent : but exemplarity tends to increase the apparent ; ag 
frugality to reduce the real. 

XIV. Thus much concerning the properties to be given toother 

... -L a i. Properties of 

punishments m general, to whatsoever offences they are to be inferior 

applied. Those which follow are of less importance, either as 
referring only to certain offences in particular, or depending 
upon the influence of transitory and local circumstances. 

In the first place, the four distinct ends into which the main 
and general end of punishment is divisible 1 , may give rise to so 
many distinct properties, according as any particular mode of 
punishment appears to be more particularly adapted to the com 
passing of one or of another of those ends. To that of example, 
as being the principal one, a particular property has already been 
adapted. There remains the three inferior ones of reformation, 
disablement, and compensation. 

XV. A seventh property, therefore, to be wished for in a Property 7. 


mode of punishment, is that of subserviency to reformation, or viency to 

TLT -i j. i_ i. A reformation. 

reforming tendency. Wow any punishment is subservient to 

reformation in proportion to its quantity : since the greater the 
punishment a man has experienced, the stronger is the tendency 
it has to create in him an aversion towards the offence which 
was the cause of it : and that with respect to all offences alike. 
But there are certain punishments which, with regard to certain 
offences, have a particular tendency to produce that effect by 
reason of their quality : and where this is the case, the punish 
ments in question, as applied to the offences in question, will 
pro tanto have the advantage over all others. This influence 
will depend upon the nature of the motive which is the cause of 
the offence : the punishment most subservient to reformation 
will be the sort of punishment that is best calculated to invali 
date the force of that motive. 

XVI. Thus, in offences originating from the motive of ill- -applied to 

1 See ch. xiii. [Cases unmeet], par. ii. note. 
O 2 

196 Of the Properties to he given to [CHAP. 

offences will 1 , that punishment has the strongest reforming tendency, 
in m-wiii. which is best calculated to weaken the force of the irascible 
affections. And more particularly, in that sort of offence which 
consists in an obstinate refusal, on the part of the offender, to do 
something which is lawfully required of him 2 , and in which the 
obstinacy is in great measure kept up by his resentment against 
those who have an interest in forcing him to compliance, the 
most efficacious punishment seems to be that of confinement to 
spare diet. 

to offences XVII. Thus, also, in offences which owe their birth to the 

fn Indolence joint influence of indolence and pecuniary interest, that punish- 

pecuniary ment seems to possess the strongest reforming tendency, which 

is best calculated to weaken the force of the former of those 

dispositions. And more particularly, in the cases of theft, em 

bezzlement, and every species of defraudment, the mode of 

punishment best adapted to this purpose seems, in most cases, 

to be that of penal labour. 

Efficac ty8 * XVIII. An eighth property to be given to a lot of punish- 
in certain cases, is that of efficacy with respect to disable 

ment, ment, or, as it might be styled more briefly, disabling efficacy. 
This is a property which may be given in perfection to a lot 
of punishment ; and that with much greater certainty than the 
property of subserviency to reformation. The inconvenience is, 
that this property is apt, in general, to run counter to that of 
frugality : there being, in most cases, no certain way of disabling 
a man from doing mischief, without, at the same time, disabling 
him, in a great measure, from doing good, either to himself or 
others. The mischief therefore of the offence must be so great 
as to demand a very considerable lot of punishment, for the 
purpose of example, before it can warrant the application of 
a punishment equal to that which is necessary for the purpose 
of disablement. 

is most XIX. The punishment, of which the efficacy in this way is the 
greatest, is evidently that of death. In this case the efficacy of it 


1 See ch. x. [Motives]. 

2 See B. I. tit. [Offences against Justice]. 

xv.] a Lot of Punishment. 397 

is certain. This accordingly is the punishment peculiarly adapted 
to those cases in which the name of the offender, so long as he 
lives, may be sufficient to keep a whole nation in a flame. This 
will now and then be the case with competitors for the sove 
reignty, and leaders of the factions in civil wars : though, when 
applied to offences of so questionable a nature, in which the 
question concerning criminality turns more upon success than 
any thing else ; an infliction of this sort may seem more to 
savour of hostility than punishment. At the same time this 
punishment, it is evident, is in an eminent degree unfrugal ; 
which forms one among the many objections there are against 
the use of it, in any but very extraordinary cases l . 

XX. In ordinary cases the purpose maybe sufficiently answered other 
by one or other of the various kinds of confinement and banish 

ment : of which, imprisonment is the most strict and efficacious, to be found. 
For when an offence is so circumstanced that it cannot be com 
mitted but in a certain place, as is the case, for the most part, 
with offences against the person, all the law has to do, in order 
to disable the offender from committing it, is to prevent his 
being in that place. In any of the offences which consist in the 
breach or the abuse of any kind of trust, the purpose may be 
compassed at a still cheaper rate, merely by forfeiture of the 
trust : and in general, in any of those offences which can only be 
committed under favour of some relation in which the offender 
stands with reference to any person, or sets of persons, merely 
by forfeiture of that relation : that is, of the right of continuing 
to reap the advantages belonging to it. This is the case, for 
instance, with any of those offences which consist in an abuse of 
the privileges of marriage, or of the liberty of carrying on any 
lucrative or other occupation. 

XXI. The ninth property is that of subserviency to compensa- Property 9. 
tion. This property of punishment, if it be vindictive compen- viency to 
sation that is in view, will, with little variation, be in proportion tion? ei 
to the quantity : if lucrative, it is the peculiar and characteristic 
property of pecuniary punishment. 

1 See B. I. tit. [Punishments]. 

198 Of the Properties to be given to [CHAP. 

Property 10. XXII. In the rear of all these properties may be introduced 


that of popularity ; a very fleeting and indeterminate kind of 
property, which may belong to a lot of punishment one moment, 
and be lost by it the next. By popularity is meant the property 
of being acceptable, or rather not unacceptable, to the bulk of 
the people, among whom it is proposed to be established. In 
strictness of speech, it should rather be called absence of un 
popularity : for it cannot be expected, in regard to such a matter 
as punishment, that any species or lot of it should be positively 
acceptable and grateful to the people : it is sufficient, for the 
most part, if they have no decided aversion to the thoughts of it. 
Now the property of characteristicalness, above noticed, seems 
to go as far towards conciliating the approbation of the people 
to a mode of punishment, as any; insomuch that popu^rity may 
be regarded as a kind of secondary quality, depending upon that 
of characteristicalness 1 . The use of inserting this property in 
the catalogue, is chiefly to make it serve by way of memento to 
the legislator not to introduce, without a cogent necessity, any 
mode or lot of punishment, towards which he happens to per 
ceive any violent aversion entertained by the body of the people. 
Mischiefs XXIII. The effects of unpopularity in a mode of punishment 

resulting , , , . 

from the are analogous to those oi untrugality. I he unnecessary pain 
larity ofa which denominates a punishment unfrugal, is most apt to be 
discontent that which is produced on the part of the offender. A por- 
Jeopie, and tion of superfluous pain is in like manner produced when the 
theiawf 8 m punishment is unpopular : but in this case it is produced on the 
part of persons altogether innocent, the people at large. This is 
already one mischief ; and another is, the weakness which it is 
apt to introduce into the law. When the people are satisfied 
with the law, they voluntarily lend their assistance in the execu 
tion : when they are dissatisfied, they will naturally withhold 

Characterise- 1 The property of characteristicalness, therefore, is useful in a mode of 
SunbhS" punishment in three different ways : i . It renders a mode of punishment, 
2 m < emor 1 able>: before infliction, more easy to be borne in mind : 2. It enables it, especially 
3! pop"uian ry after infliction, to make the stronger impression, when it is there ; that is, 

renders it the more exemplary : 3. It tends to render it more acceptable to. 

the people, that is, it renders it the more popular. 

xv.] a Lot of Punishment. 

that assistance ; it is well if they do not take a positive part in 
raising impediments. This contributes greatly to the uncertainty 
of the punishment; by which, in the first instance, the frequency 
of the offence receives an increase. In process of time that 
deficiency, as usual, is apt to draw on an increase in magnitude : 
an addition of a certain quantity which otherwise would be 
needless 1 . 

XXIV. This property, it is to be observed, necessarily sup -This proper- 
poses, on the part of the people, some prejudice or other, which a 

it is the business of the legislator to endeavour to correct. For JgS 
if the aversion to the punishment in question were grounded on cure.* 
the principle of utility, the punishment would be such as, on 
other accounts, ought not to be employed : in which case its 
popularity or unpopularity would never be worth drawing into 
question. It is properly therefore a property not so much of the 
punishment as of the people : a disposition to entertain an un 
reasonable dislike against an object which merits their approba 
tion. It is the sign also of another property, to wit, indolence 
or weakness, on the part of the legislator : in suffering the 
people, for the want of some instruction, which ought to be and 
might be given them, to quarrel with their own interest. Be 
this as it may, so long as any such dissatisfaction subsists, it 
behoves the legislator to have an eye to it, as much as if it were 
ever so well grounded. Every nation is liable to have its pre 
judices and its caprices, which it is the business of the legislator 
to look out for, to study, and to cure 2 . 

XXV. The eleventh and last of all the properties that seem Property n. 
to be requisite in a lot of punishment, is that of remissibility 3 . biiJty? 81 " 
The general presumption is, that when punishment is applied, 
punishment is needful : that it ought to be applied, and there 
fore cannot want to be remitted. But in very particular, and 

those always very deplorable cases, it may by accident happen 
otherwise. It may happen that punishment shall have been 

1 See ch. xiii. [Cases unmeet], v. 

2 See ch. xiii. [Cases unmeet], iv. par. iv. 
8 See View of the Hard Labour Bill, p. 109. 

400 Of the Properties to le given to [CHAP. 

inflicted, where, according to the intention of the law itself, it 
ought not to have been inflicted : that is, where the sufferer is 
innocent of the offence. At the time of the sentence passed he 
appeared guilty : but since then, accident has brought his inno 
cence to light. This being the case, so much of the destined 
punishment as he has suffered already, there is no help for. The 
business is then to free him from as much as is yet to come. 
But is there any yet to come ? There is very little chance of 
there being any, unless it be so much as consists of chronical 
punishment : such as imprisonment, banishment, penal labour, 
and the like. So much as consists of acute punishment, to wit 
where the penal process itself is over presently, however per 
manent the punishment may be in its effects, may be considered 
as irremissible. This is the case, for example, with whipping, 
branding, mutilation, and capital punishment. The most perfectly 
irremissible of any is capital punishment. For though other 
punishments cannot, when they are over, be remitted, they may 
be compensated for ; and although the unfortunate victim canno t 
be put into the same condition, yet possibly means may be found 
of putting him into as good a condition, as he would have been in 
if he had never suffered. This may in general be done very effec 
tually where the punishment has been no other than pecuniary. 
There is another case in which the property of remissibility 
may appear to be of use : this is, where, although the offender 
has been justly punished, yet on account of some good behaviour 
of his, displayed at a time subsequent to that of the commence 
ment of the punishment, it may seem expedient to remit a part 
of it. But this it can scarcely be, if the proportion of the pun 
ishment is, in other respects, what it ought to be. The purpose 
of example is the more important object, in comparison of that 
of reformation 1 . It is not very likely, that less punishment 
should be required for the former purpose than for the latter. 
For it must be rather an extraordinary case, if a punishment, 
which is sufficient to deter a man who has only thought of it 
for a few moments, should not be sufficient to deter a man who 
1 See ch, xiii. [Cases unmeet], ii. note. 

xv.] a Lot of Punishment. 

has been feeling it all the time. Whatever, then, is required 
for the purpose of example, must abide at all events : it is not 
any reformation on the part of the offender, that can warrant 
the remitting of any part of it : if it could, a man would have 
nothing to do but to reform immediately, and so free himself 
from the greatest part of that punishment which was deemed 
necessary. In order, then, to warrant the remitting of any part 
of a punishment upon this ground, it must first be supposed 
that the punishment at first appointed was more than was ne 
cessary for the purpose of example,and consequently that a part 
of it was needless upon the whole. This, indeed, is apt enough 
to be the case, under the imperfect systems that are as yet on 
foot : and therefore, during the continuance of those systems, the 
property of remissibility may, on this second ground likewise, as 
well as on the former, be deemed a useful one. But this would 
not be the case in any new-constructed system, in which the 
rules of proportion above laid down should be observed. In 
such a system, therefore, the utility of this property would rest 
solely on the former ground. 

XXVI. Upon taking a survey of the various possible modes of JjjJ***" 1 a11 
punishment, it will appear evidently, that there is not any one Parties, 

of them that possesses all the above properties in perfection, ments must 

F . , .be mixed. 

To do the best that can be done in the way of punishment, it 

will therefore be necessary, upon most occasions, to compound 
them, and make them into complex lots, each consisting of a 
number of different modes of punishment put together : the 
nature and proportions of the constituent parts of each lot being 
different, according to the nature of the offence which it is 
designed to combat. 

XXVII. It may not be amiss to bring together, and exhibit in The fore- 
one view, the eleven properties above established. They 

follows : 

Two of them are concerned in establishing a proper propor 
tion between a single offence and its punishment ; viz. 

1. Variability. 

2. Equability. 

202 Of the Properties to le given to [CHAP. 

One, in establishing a proportion, between more offences than 
one, and more punishments than one ; viz. 

3. Commensurability. 

A fourth contributes to place the punishment in that situation 
in which alone it can be efficacious; and at the same time to be 
bestowing on it the two farther properties of exemplarity and 
popularity ; viz. 

4. Characteristicalness. 

Two others are concerned in excluding all useless punish 
ment ; the one indirectly, by heightening the efficacy of what 
is useful ; the other in a direct way ; viz. 

5. Exemplarity. 

6. Frugality. 

Three others contribute severally to the three inferior ends of 
punishment ; viz. 

7. Subserviency to reformation. 

8. Efficacy in disabling. 

9. Subserviency to compensation. 

Another property tends to exclude a collateral mischief , which 
a particular mode of punishment is liable accidentally to pro 
duce ; viz. 

10. Popularity. 

The remaining property tends to palliate a mischief, 
which all punishment, as such, is liable accidentally to pro 
duce ; viz. 

11. Remissibility. 

The properties of commensurability, Characteristicalness, ex 
emplarity, subserviency to reformation, and efficacy in disabling, 
are more particularly calculated to augment the profit which is 
to be made by punishment: frugality, subserviency to compen 
sation, popularity, and remissibility, to diminish the expense : 
variability and equability are alike subservient to both those 
Connection XXVIII. We now come to take a general survey of the system 

of this with ,. . . , , . ,. , , . , 

the ensuing ot offences : that is, or such acts to which, on account of the 
mischievous consequences they have a natural tendency to pro- 

xv.] a Lot of Punishment. 203 

duce, and in the view of putting a stop to those consequences, it 
may be proper to annex a certain artificial consequence, con- 

isting of punishment, to be inflicted on the authors of such acts, 

ccording to the principles just established. 



I. Classes of Offences. 

Distinction * IT is necessary, at the outset, to make a distinction between 
what are such acts as are or may be, and such as ought to be offences. 

Method pur- i This chapter is an attempt to put our ideas of offences into an exact 
" method. The particular uses of method are various : but the general one 
is, to enable men to understand the things that are the subjects of it. To 
understand a thing, is to be acquainted with its qualities or properties. Of 
these properties, some are common to it with other things ; the rest, pecu 
liar. But the qualities which are peculiar to any one sort of thing are few 
indeed, in comparison with those which are common to it with other things. 
To make it known in respect of its difference, would therefore be doing 
little, unless it were made known also by its genus. To understand it per 
fectly, a man must therefore be informed of the points in which it agrees, 
as well as of those in which it disagrees, with all other things. When a 
number of objects,composing a logical whole, are to be considered together, 
all of these possessing with respect to one another a certain congruency or 
agreement denoted by a certain name, there is but one way of giving a 
perfect knowledge of their nature ; and that is, by distributing them into a 
system of parcels, each of them a part, either of some other parcel, or, at 
any rate, of the common whole. This can only be done in the way of U<par- 
tition, dividing each superior branch into two, and but two, immediately 
subordinate ones ; beginning with the logical whole, dividing that into two 
parts, then each of those parts into two others ; and so on. These first- 
distinguished parts agree in respect of those properties which belong to the 
whole : they differ in respect of those properties which are peculiar to each. 
To divide the whole into more than two parcels at once, for example into 
three, would not answer the purpose ; for, in fact, it is but two objects that 
the mind can compare together exactly at the same time. Thus then, let 
us endeavour to deal with offences ; or rather, strictly speaking, with acts 
which possess such properties as seem to indicate them fit to be constituted 
offences. The task is arduous ; and, as yet at least, perhaps for ever, above 
our force. There is no speaking of objects but by their names : but the 
business of giving them names has always been prior to the true and perfect 
knowledge of their natures. Objects the most dissimilar have been spoken 
of and treated as if their propertieswere the same. Objects the most similar 
have been spoken of and treated as if they had scarce anything in common. 
Whatever discoveries may be made concerning them, how different soever 
their congruencies and disagreements maybe found to be from those which 
are indicated by their names, it is not without the utmost difficulty that 
any means can be found out of expressing those discoveries by a conform- 

Division of Offences. 


For in the case of detrimental. 

Any act may be an offence, which they whom the community offences and 
are in the habit of obeying shall be pleased to make one : that to be. U * 
is, any act which they shall be pleased to prohibit or to punish. 
But, upon the principle of utility, such acts alone ought to be 
made offences, as the good of the community requires should be 
made so. 

II. The good of the community cannot require, that any act Noactought 
should be made an offence, which is not liable, in some way 

other, to be detrimental to the community. 

such an act, all punishment is groundless 1 . community 

III. But if the whole assemblage of any number of indivi- TO be so, it 
duals be considered as constituting an imaginary compound body, Simentai 
a community or political state ; any act that is detrimental toSSSofit 
any one or more of those members is, as to so much of its effects, members - 
detrimental to the state. 

IV. An act cannot be detrimental to a state, but by being These may 
detrimental to some one or more of the individuals that com- abie S or g not. 
pose it. But these individuals may either be assignable 2 or 


V. When there is any assignable individual to whom an if assign- 
I offence is detrimental, that person may either be a person other offender 6 

I cb an the offender, or the offender himself. 

VI. Offences that are detrimental, in the first instance, to 
[assignable persons other than the offender, may be termed 

one common name, offences against individuals. And of these 
may be composed the 1st class of offences. To contrast them 

ible set of names. Change the import of the old names, and you are in 
jerpetual danger of being misunderstood : introduce an entire new set of 
lames, and you are sure not to be understood at all. Complete success, 
ihen, is, as yet at least, unattainable. But an attempt, though imperfect, 
nay have its use : and, at the worst, it may accelerate the arrival of that 
I )erfect system, the possession of which will be the happiness of some ma- 
urer age. Gross ignorance descries no difficulties ; imperfect knowledge 
Lnds them out, and struggles with them : it must be perfect knowledge 
hat overcomes them. 

1 See ch. xiii. [Cases unmeet], ii. i. 

8 That is, either by name, or at least by description, in such manner as p ers ons assign. 
hill I o be sufficiently distinguished from all others ; for instance, by the circum- able . how- 
tance of being the owner or occupier of such and such goods. See B. I. 
it. [Personation], supra, ch. xii. [Consequences], xv. 

class i. 

206 Division of Offences. [CHAP. 

with offences of the 2nd and 4th classes, it may also sometime 
be convenient to style them private offences. To contrast then 
at the same time with offences of the 3rd class, they may bestylec 
private extra-regarding offences. 

Class 2. vii. "When it appears, in general, that there are persons t 

Semi-public . 

offences. whom the act in question may be detrimental, but such person 

cannot beindividually assigned, the circle within which it appear 
that they may be found, is either of less extent than that whic 
comprises the whole community, or not. If of less, the person 
comprised within this lesser circle may be considered for thi 
purpose as composing a body of themselves ; comprised within 
but distinguishable from, the greater body of the whole com 
munity. The circumstance that constitutes the union betweei 
the members of this lesser body, may be either their residenc 
within a particular place, or, in short, any other less explici 
principle of union, which may serve to distinguish them fron 
the remaining members of the community. In the first case 
the act may be styled an offence against a neighbourhood: in th 
second, an offence against a particular class of persons in th 
community. Offences, then, against a class or neighbourhood 
may, together, constitute the 2nd class of offences 1 . To contras 
them with private offences on the one hand, and public on th 
other, they may also be styled semi-public offences. 
Class 3. VIII. Offences, which in the first instance are detrimental t 
hi offences, the offender himself, and to no one else, unless it be by thei 
being detrimental to himself , may serve to compose a third class 
To contrast them the better with offences of the first, second 

Limits between * With regard to offences against a class or neighbourhood, it is evident 
pubifc e and ni " that the fewer the individuals are, of which such class is composed, and th 
pubiicoffences, narrower that neighbourhood is, the more likely are the persons, to whon 
the offence is detrimental, to become assignable ; insomuch that, in som< 
cases, it may be difficult to determine concerning a given offence, whethe 
it be an offence against individuals, or against a class or neighbourhood. I 
is evident also, that the larger the class or neighbourhood is, the more i 
approaches to a coincidence with the great body of the state. The thre 
classes, therefore, are liable to a certain degree, to run into one another 
and be confounded. But this is no more than what is the case, more p. 
less, with all those ideal compartments under which men are wont to dis 
tribute objects for the convenience of discourse. 


xvi.] Division Of Offt 



and fourth classes, all which are of a transitive nature, they 
might be styled intransitive l offences ; but still better, self- 

IX. The fourth class may be composed of such acts as ought Class 4, 
to be made offences, on account of the distant mischief which Offences, 
they threaten to bring upon an unassignable indefinite multitude 

of the whole number of individuals, of which the community is 
composed: although no particular individual should appear more 
likely to be a sufferer by them than another. These may be 
called public offences, or offences against the state. 

X. A fifth class, or appendix, may be composed of such acts Class 5. 
as, according to the circumstances in which they are committed, <SSTviz. 
and more particularly according to the purposes to which they bV?atehood. 
are applied, may be detrimental in any one of the ways in which agSnst es 
the act of one man can be detrimental to another. These may trust< 

be termed multiform, or heterogeneous offences 2 . Offences that 

1 See ch. vii. [Actions], xiii. 

2 i. Offences by falsehood : 2. Offences against trust. See also par. xx. The imperfec. 
to xxx. and par. Ixvi. Maturer views have suggested the feasibility, and ^0^ " 
the means, of ridding the system of this anomalous excrescence. Instead obstacle to 
of considering these as so many divisions of offences, divided into genera, arrau ement * 

orrespondent and collateral to the several genera distinguished by other 
ppellations, they may be considered as so many specific differences, re- 
pectively applicable to those genera. Thus, in the case of a simple personal 
njury, in the operation of which a plan of falsehood has been employed : it 
eems more simple and more natural, to consider the offence thus committed 
s a particular species or modification of the genus of offence termed a simple 
personal injury, than to consider the simple personal injury, when effected 
ysuch means, as a modification of the division of offences entitled Offences 
hrough falsehood. By this means the circumstances of the intervention of 
alsehood as an instrument, and of the existence of a particular obligation 
f the nature of a trust, will be reduced to a par with various other classes 
f circumstances capable of affording grounds of modification, commonly of 
ggravation or extenuation, to various genera of offences : instance, Pre- 
neditation, and conspiracy, on the one hand ; Provocation received, and 
ntoxication, on the other. This class will appear, but too plainly, as a 
Jnd of botch in comparison of the rest. But such is the fate of science, 
nd more particularly of the moral branch ; the distribution of things must 
a a great measure be dependent on their names : arrangement, the work 
f mature reflection, must be ruled by nomenclature, the work of popular 

In the book of the laws, offences must therefore be treated of as much as 
ossible under their accustomed names. Generical terms, which are in 
ontinual use, and which express ideas for which there are no other terms 
i use, cannot safely be discarded. When any such occur, which cannot 


Division of Offences. 


Divisions of 
Class l. 
(i) Offences 
person ; (2) 
(3) Reputa 
Condition ; 
(5) Person 
and pro 
perty; (6) 
Person and 

are in this case may be reduced to two great heads : I. Offences 
by falsehood : and 2. Offences against trust. 

2. Divisions and sub-divisions. 

XI. Let us see by what method these classes may be farthei 
sub-divided. First, then, with regard to offences against indi 

In the present period of existence, a man s being and well 
being, his happiness and his security ; in a word, his pleasure 
and his immunity from pains, are all dependent, more or less, in 
the first place, upon his own person ; in the next place, upon 
the exterior objects that surround him. These objects are eithe 
things, or other persons. Under one or other of these classe 
must evidently be comprised every sort of exterior object, by 
means of which his interest can be affected. If then, by mean 
of any offence, a man should on any occasion become a sufferer 
it must be in one or other of two ways : I. absolutely, to wit 

be brought to quadrate with such a plan of classification as appears to be 
most convenient upon the whole, what then is to be done? There seems 
to be but one thing ; which is, to retain them, and annex them to the 
regular part of the system in the form of an appendix. Though they can 
not, when entire, be made to rank under any of the classes established in 
the rest of the system, the divisions to which they give title may be broken 
down into lesser divisions, which may not be alike intractable. By this 
means, how discordant soever with the rest of the system they may appear 
to be at first sight, on a closer inspection they may be found conformable 
This must inevitably be the case with the names of offences, which are 
so various and universal in their nature, as to be capable, each of them 
of doing whatever mischief can be done by any other kind or kinds of 
offences whatsoever. Offences of this description may well be called 

Such offences, it is plain, cannot but show themselves equally intractable 
on t a b ny a other ed under every kind of system. Upon whatever principle the system be con- 
piaa. structed, they cannot, any of them, with any degree of propriety, be con 

fined to any one division. If, therefore, they constitute a blemish in the 
present system, it is such a blemish as could not be avoided but at the ex 
pense of a greater. The class they are here thrown into will traverse, ID 
its subordinate ramifications, the other classes and divisions of the presen 
system : true, but so would they of any other. An irregularity, and thai 
but a superficial one, is a less evil than continual error and contradiction. 
But even this slight deviation, which the fashion of language seemed tc 
render unavoidable at the outset, we shall soon find occasion to correct as 
we advance. For though the first great parcels into which the offences oJ 
this class are divided are not referable, any of them, to any of the forme] 
classes, yet the subsequent lesser subdivisions are. 

of this class 

vhich could 


Division of Offences. 


immediately in his own person ; in which case the offence may 
be said to be an offence against his person : or, 2. relatively, by 
reason of some material relation x which the before mentioned 
exterior objects may happen to bear, in the way of causality 
(see ch. vii. Actions, par. 24) to his happiness. Now in as far 
as a man is in a way to derive either happiness or security from 
any object which belongs to the class of things, such thing is said 
to be his property, or at least he is said to have a property or an 
interest therein : an offence, therefore, which tends to lessen the 
facility he might otherwise have of deriving happiness or security 
from an object which belongs to the class of things, may be styled 
an offence against his property. With regard to persons, in as 
far as, from objects of this class, a man is in a way to derive 
I happiness or security, it is in virtue of their services : in virtue 
of some services, which, by one sort of inducement or another, 
[they may be disposed to render him 2 . Now, then, take any man, 

1 See ch. vii. [Actions], iii. and xxiv. 

If, by reason of the word relation,this part of the division should appear inwhatmannet 
I obscure, the unknown term may be got rid of in the following manner. p^depend 
Our ideas are derived, all of them, from the senses ; pleasurable and painful "p n the rela - 
ones, therefore, among the rest: consequently, from the operation of sensible "ears to 5 **. 
I objects upon our senses. A man s happiness, then, may be said to depend terior b J e cts. 
| more or less upon the relation he bears to any sensible object, when such 
object is in a way that stands a chance, greater or less, of producing to 
pirn, or averting from him, pain or pleasure. Now this, if at all, it must 
|lo in one or other of two ways ; I. In an active way, properly so called ; 
az. by motion : or, 2. In a passive or quiescent way, by being moved to, or 
Ucted upon : and in either case, either, i. in an immediate way, by acting 
I ipon, or being acted on by, the organs of sense, without the intervention 
pf any other external object : or, 2. in a more or less remote way, by acting 
upon, or being acted on by, some other external object, which (with the 
ntervention of a greater or less number of such objects, and at the end of 
I Qore or less considerable intervals of time) will come at length to act upon, 
jr be acted upon by, those organs. And this is equally true, whether the 
xternal objects in question be things or persons. It is also equally true 
I f pains and pleasures of the mind, as of those of the body : all the dif- 
| srence is, that in the production of these, the pleasure or pain may result 
nmediately from the perception which it accompanies : in the production 
I f those of the mind, it cannot result from the action of an object of sense, 
ny otherwise than by association ; to wit, by means of some connection 
ilich the perception has contracted with certain prior ones, lodged already 
i the memory \ 
* See ch. x. [Motives]. 

1 See ch. v. ^Pleasures and Pains], xv. xxxi. Ch. x. [Motives], xxxlx 



Division of Offences. [CHAP, 

by way of example, and the disposition, whatever it may be 
which he may be in to render you service, either has no othe 
connection to give birth or support to it, than the general on( 
which binds him to the whole species, or it has some other con 
nection more particular. In the latter case, such a connection 
may be spoken of as constituting, in your favour, a kind of ficti 
tious or incorporeal object of property, which is styled you 
condition. An offence, therefore, the tendency of which is tc 
lessen the facility you might otherwise have of deriving happi 
ness from the services of a person thus specially connected wit 
you, may be styled an offence against your condition in life, o 
simply against your condition. Conditions in life must evidently 
be as various as the relations by which they are constituted 
This will be seen more particularly farther on. In the meai 
time those of husband, wife, parent, child, master, servant 
citizen of such or such a city, natural-born subject of such o 
such a country, may answer the purpose of examples. 

Where there is no such particular connection, or (what come 
to the same thing) where the disposition, whatever it may be 
which a man is in to render you service, is not considered a 
depending upon such connection, but simply upon the good-wi 
he bears to you ; in such case, in order to express what chanc 
you have of deriving a benefit from his services, a kind of ficti 
tious object of property is spoken of, as being constituted in you 
favour, and is called your reputation. An offence, therefore, th 
tendency of which is to lessen the facility you might otherwis 
have had of deriving happiness or security from the services o: 
persons at large, whether connected with you or not by an 1 
special tie, may be styled an offence against your reputation. I 
appears, therefore, that if by any offence an individual becomes 
a sufferer, it must be in one or other of the four points abov 
mentioned; viz. his person, his property, his condition in life, o 
his reputation. These sources of distinction, then, may serve t< 
form so many subordinate divisions. If any offences should b 
found to affect a person in more than one of these points at th 
same time, such offences may respectively be put under so man; 

xvi.] Division of Offences. 

separate divisions ; and such compound divisions may be sub- 

oined to the preceding simple ones, The several divisions (simple 
and compound together) which are hereinafter established, stand 
as follows : i. Offences against person. 2. Offences against 
reputation. 3. Offences against property. 4. Offences against 
condition. 5. Offences against person and property together. 
6. Offences against person and reputation together *. 

XII. Next with regard to semi-public offences. Pain, con- Divisions of 
sidered with reference to the time of the act from which it is ^ 
liable to issue, must, it is evident, be either present, past, or 

uture. In as far as it is either present or past, it cannot be the 
result of any act which comes under the description of a semi- 
public offence : for if it be present or past, the individuals who 
experience, or who have experienced, it are assignable 2 . There 
remains that sort of mischief, which, if it ever come to exist at 
ill, is as yet but future : mischief, thus circumstanced, takes the 
name of danger 3 . Now, then, when by means of the act of any 

>erson a whole neighbourhood, or other class of persons, are 
exposed to danger, this danger must either be intentional on his 
part, or unintentional 4 . If unintentional, such danger, when it 
is converted into actual mischief, takes the name of a calamity : 

>ffences, productive of such danger, may be styled semi-public 
offences operating through calamity ; or, more briefly, offences 

hrough calamity. If the danger be intentional, insomuch that 

t might be produced, and might convert itself into actual mis 
chief, without the concurrence of any calamity, it may be said to 

>riginate in mere delinquency :. offences, then, which, without 
the concurrence of any calamity, tend to produce such danger 

Subsequent consideration has here suggested several alterations. The 
aecessity of adding to property, power, in the character of a distinguishable 
is well as valuable object or subject-matter of possession, has presented 
itself to view : and in regard to the fictitious entity here termed condition 
for shortness instead of saying condition in life), it has been observed to 
3e a sort of composite object, compounded of property, reputation, power, 
md right to services. For this composite object the more proper place was 
therefore at the tail of the several simple ones. Note by the Editor, July, 

8 Supra, iv. note. 3 Seech, xii. [Consequences]. 

* See ch. viii. [Intentionality]. 


212 Division, of Offences. [CHAP. 

as disturbs the security of a local, or other subordinate class of 
persons, may be styled semi-public offences operating merely by 
delinquency, or more briefly, offences of mere delinquency. 
Sub- XIII. With regard to any farther sub-divisions, offence 

divisions of -T , , . MI 

offences through calamity will depend upon the nature of the severa 

calamity, calamities to which man, and the several things that are of us 

to him, stand exposed. These will be considered in anothe 

place 1 . 

infre nces XIV< Semi-public offences of mere delinquency will follow 
the method of division applied to offences against individuals 
It will easily be conceived, that whatever pain or inconvenienc 
any given i n( ^ vi( * ual ma y be ma de to suffer, to the danger o 
offences. that pain or inconvenience may any number of individuals, as 
signable or not assignable, be exposed. Now there are fou 
points or articles, as we have seen, in respect to which an indi 
vidual may be made to suffer pain or inconvenience. If then 
with respect to any one of them, the connection of causes and 
effects is such, that to the danger of suffering in that article 
number of persons, who individually are not assignable, may 
by the delinquency of one person, be exposed, such article wil 
form a ground of distinction on which a particular sub -division 
of semi-public offences may be established : if, with respect to 
any such article, no such effect can take place, that ground o: 
distinction will lie for the present unoccupied : ready, however, 
upon any change of circumstances, or in the manner of viewing 
the subject, to receive a correspondent subdivision of offences, if 
ever it should seem necessary that any such offences should be 

come next to self-regarding offences ; or, more pro- 

withth 6 P er ty to act s productive in the first instance of no other than 
Class i. a self-regarding mischief : acts which, if in any instance it be 

1 See B. I. tit. [Semi-public offences]. In the mean time that of pesti 
lence may serve as an example. A man, without any intention of giving 
birth to such a calamity, may expose a neighbourhood to the danger of it, 
by breaking quarantine or violating any of those other preventive regula 
tions which governments, at certain conjunctures, may find it expedient to 
have recourse to, for the purpose of guarding against such danger. 

xvi.] Division of Offences. 

bought fit to constitute them offences, will come under the 
denomination of offences against one s self. This class will not 

:or the present give us much trouble. For it is evident, that in 
whatever points a man is vulnerable by the hand of another, in 

;he same points may he be conceived to be vulnerable by his 
own. Whatever divisions therefore will serve for the first class, 

;he same will serve for this. As to the questions, What acts are 

)roductive of a mischief of this stamp? and, among such as are, 

rhich it may, and which it may not, be worth while 1 to treat 
upon the footing of offences ? these are points, the latter of 
which at least is too unsettled, and too open to controversy, to 

)e laid down with that degree of confidence which is implied in 

;he exhibition of properties which aremade use of as the ground 
work of an arrangement. Properties for this purpose ought to 

>e such as show themselves at first glance, and appear to belong 
to the subject beyond dispute. 
XVI. Public offences may be distributed under eleven divi- Divisions of 

ions 2 , i. Offences against external security. 2. Offences l! 
against justice. 3. Offences against the preventive branch of the 

1 See ch. xiii. [Cases unmeet], iv. 

2 In this part of the analysis, I have found it necessary to deviate in Exhaustive 
ome degree from the rigid rules of the exhaustive method I set out with. meth d de - 

r> i i i parted from. 

By me, or by some one else, this method may, perhaps, be more strictly 
mrsued at some maturer period of the science. At present, the benefit 
ihat might result from the unrelaxed observance of it, seemed so precarious, 
;hat I could not help doubting whether it would pay for the delay and 
trouble. Doubtless such a method is eminently instructive : but the fatigue 
f following it out is so great, not only to the author, but probably also to 
he reader, that if carried to its utmost length at the first attempt, it might 
Derhaps do more disservice in the way of disgust, than service in the way 
f information. For knowledge, like physic, how salutary soever in itself, 
)econies no longer of any use, when made too unpalatable to be swallowed, 
tfean time, it cannot but be a mortifying circumstance to a writer, who is 
ensible of the importance of his subject, and anxious to do it justice, to 
md himself obliged to exhibit what he perceives to be faulty, with any 
dew, how indistinct soever, of something more perfect before his eyes. If 
here be any thing new and original in this work, it is to the exhaustive 
nethod so often aimed at that I am indebted for it. It will, therefore, be 
10 great wonder if I should not be able to quit it without reluctance. On 
he other hand, the marks of stiffness which will doubtless be perceived in 
. multitude of places, are chiefly owing to a solicitous, and not perfectly 
uccessful, pursuit of this same method. New instruments are seldom 
.andled at first with perfect ease. 

214 Division of Offences. [CHAP. 

police. 4. Offences against the public force. 5. Offences against 
the positive increase of the national/efo c%. 6. Offences against 
the public wealth. 7. Offences against population. 8. Offences 
against the national wealth. 9. Offences against the sovereignty 
10. Offences against religion. II. Offences against the nationa 
interest in general. The way in which these several sorts o: 
offences connect with one another, and with the interest of th( 
public, that is, of an unassignable multitude of the individuals 
of which that body is composed, may be thus conceived. 

Connection XVII. Mischief by which the interest of the public as above 
of the nine -11 

first defined may be affected, must, if produced at all, be producec 

divisions one , -. 

with either by means of an influence exerted on the operations o 

government, or by other means, without the exertion of such in 
fluence 1 . To begin with the latter case : mischief, be it what il 
will, and let it happen to whom it will, must be produced eithei 
by the unassisted powers of the agent in question, or by the 
instrumentality of some other agents. In the latter case, these 
agents will be either persons or things. Persons again must b( 
either not members of the community in question, or members 
Mischief produced by the instrumentality of persons,may accord 
ingly be produced by the instrumentality either of external 01 
of internal adversaries. Now when it is produced by the agent s 
own unassisted powers, or by the instrumentality of interna 
adversaries, or only by the instrumentality of things, it is seldom 
that it can show itself in any other shape (setting aside any 
influence it may exert on the operations of government) than 
either that of an offence against assignable individuals, or that o 
an offence against a local or other subordinate class of persons 
If there should be a way in which mischief can be produced, by 
any of these means, to individuals altogether unassignable, i 1 
will scarcely be found conspicuous or important enough tc 

1 The idea of government, it may be observed, is introduced here withoul 
any preparation. The fact of its being established, I assume as notorious 
and the necessity of it as alike obvious and incontestable. Observation; 
indicating that necessity, if any such should be thought worth looking at ir 
this view, may be found by turning to a passage in a former chapter, when 
they were incidentally adduced for the purpose of illustration. See ch. xii 
[Consequences], xvii. 

xvi.j Division of Offences. 215 

occupy a title by itself : it may accordingly be referred to the 
miscellaneous head of offences against the national interest in 
general 1 . The only mischief, of any considerable account, which 
can be made to impend indiscriminately over the whole number 
of members in the community, is that complex kind of mischief 
which results from a state of war, and is produced by the instru 
mentality of external adversaries ; by their being provoked, for 
instance, or invited, or encouraged to invasion. In this way 
may a man very well bring down a mischief, and that a very 
heavy one, upon the whole community in general, and that 
without taking a part in any of the injuries which came in 
consequence to be offered to particular individuals. 

Next with regard to the mischief which an offence may bring 
upon the public by its influence on the operations of the govern 
ment. This it may occasion either, I. In a more immediate 
way, by its influence on those operations themselves : 2. In a 
more remote way, by its influence on the instruments by or by 
the help of which those operations should be performed : or 3. 
In a more remote way still, by its influence on the sources from 
whence such instruments are to be derived. First then, as to 
the operations of government, the tendency of these, in as far as 
it is conformable to what on the principle of utility it ought to 
be, is in every case either to avert mischief from the community, 
or to make an addition to the sum of positive good 2 . Now 

1 See infra, liv. note. Even this head, ample as it is, and vague as it 
may seem to be, will not, when examined by the principle of utility, serve, 
any more than another, to secrete any offence which has no title to be 
placed there. To show the pain or loss of pleasure which is likely to ensue, 
is a problem, which before a legislator can justify himself in adding the act 
to the catalogue of offences, he may in this case, as in every other, be called 
upon to solve. 

2 For examples, see infra, liv. note. This branch of the business of 
government, a sort of work of supererogation, as it may be called, in the 
calendar of political duty, is comparatively but of recent date. It is not 
for this that the untutored many could have originally submitted themselves 
to the dominion of the few. It was the dread of evil, not the hope of good, 
that first cemented societies together. Necessaries come always before 
luxuries. The state of language marks the progress of ideas. Time out of 
mind the military department has had a name : so has that of justice : the 
power which occupies itself in preventing mischief, not till lately, and that 
but a loose one, the police : for the power which takes for its object the 

2i 6 Division of Offences. [CHAP. 

mischief, we have seen, must come either from external adver 
saries, frominternal adversaries, or from calamities. With regard 
to mischief from external adversaries, there requires no further 
division. As to mischief from internal adversaries, the expe 
dients employed for a verting it may be distinguished into such as 
may be applied before the discovery of any mischievous design 
in particular, and such as cannot be employ ed but in consequence 
of the discovery of some such design : the former of these are 
commonly referred to a branch which may be styled the preven 
tive branch of the police : the latter to that of justice 1 . Secondly, 
As to the instruments which government, whether in the avert 
ing of evil or in the producing of positive good, can have to 
work with, these must be either persons or things. Those which 
are destined to the particular function of guarding against mis 
chief from adversaries in general, but more particularly from 
external adversaries 2 , may be distinguished from the rest under 

introduction of positive good, no peculiar name, however inadequate, seems 
yet to have been devised. 

* The functions of justice, and those of the police, must be apt in many 
points to run one into another : especially as the business would be very 
badly managed if the same persons, whose more particular duty it is to act 
as officers of the police, were not upon occasion to act in the capacity of 
officers of justice. The ideas, however, of the two functions may still be 
kept distinct : and I see not where the line of separation can be drawn, 
unless it be as above. 

As to the word police, though of Greek extraction, is seems to be of 
French growth : it is from France, at least, that it has been imported into 
Great Britain, where it still retains its foreign garb : in Germany, if it did 
not originate there, it has at least been naturalized. Taken all together, 
the idea belonging to it seems to be too multifarious to be susceptible of 
any single definition. Want of words obliged me to reduce the two branches 
here specified into one. Who would have endured in this place to have 
seen two such words as the phthano-paranomic or crime- preventing, and the 
phthano-symphoric or calamity-preventing, branches of the police ? the incon 
veniences of uniting the two branches under the same denomination, are, 
however, the less, inasmuch as the operations requisite to be performed for 
the two purposes will in many cases be the same. Other functions, com- 

of the public wealth. See infra, liv. note. 

2 It is from abroad that those pernicious enterprises are most apt to 
originate, which come backed with a greater quantity of physical force 
than the persons who are in a more particular sense the officers of justice 
are wont to have at their command. Mischief the perpetration of which is 
ensured by a force of such magnitude, may therefore be looked upon in 

xvi.] Division of Offences. 217 

the collective appellation of tlie public military force, and, for con 
ciseness sake, the military force. The rest may be characterised 
by the collective appellation of the public wealth. Thirdly, with 
regard to the sources or funds from whence these instruments, 
howsoever applied, must be derived, such of them as come under 
the denomination of persons must be taken out of the whole 
number of persons that are in the community, that is, out of the 
total population of the state : so that the greater the popula 
tion, the greater may cceteris paribus be this branch of the public 
wealth ; and the less, the less. In like manner, such as come 
under the denomination of things may be, and most of them 
commonly are, taken out of the sum total of those things which 
are the separate properties of the several members of the com 
munity : the sum of which properties may be termed the national 
wealth 1 : so that the greater the national wealth, the greater cceteris 
paribus may be this remaining branch of the public wealth ; and 
the less, the less. It is here to be observed, that if the influence 
exerted on any occasion by any individual over the operations of 
the government be pernicious, it must be in one or other of two 
ways : I. By causing, or tending to cause, operations not to be 
performed which ought to be performed ; in other words, by 
impeding the operations of government. Or, 2. By causing 
operations to be performed which ought not to be performed ; 
in other words, by misdirecting them. Lastly, to the total 

general as the work of external adversaries. Accordingly, when the persons 
by whom it is perpetrated are in such force as to bid defiance to the ordi 
nary efforts of justice, they loosen themselves from their original denomina 
tion in proportion as they increase in force, till at length they are looked 
upon as being no longer members of the state, but as standing altogether 
upon a footing with external adversaries. Give force enough to robbery, 
and it swells into rebellion : give permanence enough to rebellion, and it 
settles into hostility. 

1 It must be confessed, that in common speech the distinction here 
established between the public wealth and the national wealth is but 
indifferently settled : nor is this to be wondered at ; the ideas themselves, 
though here necessary to be distinguished, being so frequently convertible. 
But I am mistaken if the language will furnish any other two words that 
would express the distinction better. Those in question will, I imagine, 
be allowed to be thus far well chosen, that if they were made to change 
their places, the import given to them would not appear to be quite so 
proper as that which is given to them as they stand at present. 

2i 8 Division of Offences. [CHAP. 

assemblage of the persons by whom the several political operations 
above mentioned come to be performed, we set out with apply 
ing the collective appellation of the government. Among these 
persons there commonly^ is some one person, or body of persons 
whose office it is to assign and distribute to the rest their several 
departments, to determine the conduct to be pursued by each in 
the performance of the particular set of operations that belongs 
to him, and even upon occasion to exercise his function in his 
stead. Where there is any such person, or body of persons, he 
or it may, according as the turn of the phrase requires, be termed 
the sovereign, or the sovereignty. Now it is evident, that to im 
pede or misdirect the operations of the sovereign, as here de 
scribed, may be to impede or misdirect the operations of the 
several departments of government as described above. 

From this analysis, by which the connection between the 
several above-mentioned heads of offences is exhibited, we may 
now collect a definition for each article. By offences against 
external security, we may understand such offences whereof the 
tendency is to bring upon the public a mischief resulting from 
the hostilities of foreign adversaries. By offences against justice, 
such offences whereof the tendency is to impede or misdirect the 
operations of that power which is employed in the business of 
guarding the public against the mischiefs resulting from the de 
linquency of internal adversaries, as far as it is to be done by 
expedients, which do not come to be applied in any case till after 
the discovery of some particular design of the sort of those which 
they are calculated to prevent. By offences against the preventive 
branch of the police, such offences whereof the tendency is to 
impede or misdirect the operations of that power which is em 
ployed in guarding against mischiefs resulting from the delin 
quency of internal adversaries, by expedients that come to be 
applied beforehand ; or of that which is employed in guarding 

1 I should have been afraid to have said necessarily. In the United 
Provinces, in the Helvetic, or even in the Germanic body, where is that 
one assembly in which an absolute power over the whole resides ? where i 
was there in the Roman Commonwealth ? I would not undertake fot \ 
certain to find an answer to all these questions. 

xvi.] Division of Offences. 219 

against the mischiefs that might be occasioned by physical cala 
mities. By offences against the public force, such offences whereof 
the tendency is to impede or misdirect the operations of that 
power which is destined to guard the public from the mischiefs 
which may result from the hostility of foreign adversaries, and, 
in case of necessity, in the capacity of ministers of justice, from 
mischiefs of the number of those which result from the delin 
quency of internal adversaries. 

By offences against the increase of the national felicity, such 
offences whereof the tendency is to impede or misapply the ope 
rations of those powers that are employed in the conducting of 
various establishments, which are calculated tomake,in so many 
different ways, a positive addition to the stock of public happi 
ness. By offences against the public wealth, such offences whereof 
the tendency is to diminish the amount or misdirect the applica 
tion of the money, and other articles of wealth, which the govern 
ment reserves as a fund, out of which the stock of instruments 
employed in the service above mentioned may be kept up. By 
offences against population, such offences whereof the tendency 
is to diminish the numbers or impair the political value of the 
sum total of the members of the community. By offences against 
the national wealth, such offences whereof the tendency is to 
diminish the quantity, or impair the value, of the things 
which compose the separate properties or estates of the several 
members of the community. 

XVIII. In this deduction, it may be asked, what place is left Connection 
for religion ? This we shall see presently. For combating the against 
various kinds of offences above enumerated, that is, for combating theSe 
i all the offences (those not excepted which we are now about con- go 
j sidering) which it is in man s nature to commit, the state has 
| two great engines, punishment and reward : punishment, to be 
I applied to all, and upon all ordinary occasions : reward, to be 
1 applied to a few, for particular purposes, and upon extraordinary 
occasions. But whether or no a man has done the act which 
renders him an object meet for punishment or reward, the eyes 
5 of those, whosoever they be, to whom the management of these 

Division of Offences. [CHAP. 

engines is entrusted cannot always see, nor, where it is punish 
ment that is to be administered, can their hands be always sure 
to reach him. To supply these deficiencies in point of power, it 
is thought necessary, or at least useful (without which the truth 
of the doctrine would be nothing to the purpose), to inculcate 
into the minds of the people the belief of the existence of a power 
applicable to the same purposes, and not liable to the same 
deficiencies : the power of a supreme invisible being, to whom a 
disposition of contributing to the same ends to which the several 
institutions already mentioned are calculated to contribute,must 
for this purpose be ascribed. It is of course expected that this 
power will, at one time or other, be employed in the promoting 
of those ends : and to keep up and strengthen this expectation 
among men, is spoken of as being the employment of a kind of 
allegorical personage, feigned, as before 1 , for convenience of dis 
course, and styled religion. To diminish, then, or misapply the 
influence of religion, is pro tanto to diminish or misapply what 
power the state has of combating with effect any of the before- 
enumerated kinds of offences ; that is, all kinds of offences what 
soever. Acts that appear to have this tendency may be styled 
offences against religion. Of these then may be composed the 
tenth division of the class of offences against the state 2 . 

1 See par. xvii. with regard to justice. 

2 It may be observed, that upon this occasion I consider religion in no 
other light, than in respect of the influence it may have on the happiness 

. of the present life. As to the effects it may have in assuring us of and 
preparing us for a better life to come, this is a matter which comes not 
within the cognizance of the legislator. See tit. [Offences against religion]. 

I say offences against religion, the fictitious entity: not offences against 
God, the real being. For, what sort of pain should the act of a feeble 
mortal occasion to a being unsusceptible of pain? How should an offence 
affect him? Should it be an offence against his person, his property, his 
reputation, or his condition ? 

It has commonly been the way to put offences against religion foremost. 
The idea of precedence is naturally enough connected with that of reverence. 
EK Aio? apx&iJitaOa. But for expressing reverence, there are other methods 
enough that are less equivocal. And in point of method and perspicuity, 
it is evident, that with regard to offences against religion, neither the nature 
of the mischief which it is their tendency to produce, nor the reason there 
may be for punishing them, can be understood, but from the consideration 
of the several mischief s which result from the several other sorts of offences. 

xvi.] Division of Offences. 

XIX. If there be any acts which appear liable to affect the Connection 
state in any one or more of the above ways, by operating in agaSthe 

prejudice of the external security of the state, or of its internal 
security ; of the public force ; of the increase of the national the rest. wlt 
felicity; of the public wealth ; of the national population ; of the 
national wealth ; of the sovereignty ; or of religion ; at the same 
time that it is not clear in which of all these ways they will 
affect it most, nor but that, according to contingencies, they may 
affect it in one of these ways only or in another ; such acts may 
be collected together under a miscellaneous division by them 
selves, and styled offences against the national interest in general. 
Of these then may be composed the eleventh and last division of 
the class of offences against the state. 

XX. We come now to class the fifth : consisting of multiform sub- 
offences. These, as has been already intimated, are either ciaST 8 f 
offences by falsehood, or offences concerning trust. Under the DiviSorfs ted 
head of offences by falsehood, may be comprehended, i. Simple byfSsehood. 
falsehoods. 2. Forgery. 3. Personation. 4. Perjury 1 . Let 

us observe in what particulars these four kinds of falsehood 
agree, and in what they differ. 

XXI. Offences by falsehood, however diversified in other par- offences by 
ticulars, have this in common, that they consist in some abuse of wffSujy m 
the faculty of discourse, or rather, as we shall see hereafter, of oneanother. 

In a political view, it is only because those others are mischievous, that 
offences against religion are so too. 

1 This division of falsehoods, it is to be observed, is not regularly drawn 
out : that being what the nature of the case will not here admit of. False 
hood may be infinitely diversified in other ways than these. In a particular 
1 j case, for instance, simple falsehood when uttered by writing, is distinguished 
\ from the same falsehood when uttered by word of mouth ; and has had a 
\ particular name given to it accordingly. I mean, where it strikes against 
\ \ reputation ; in which case,the instrument it has been uttered by has been 
3alled a libel. Now it is obvious, that in the same manner it might have 
: Deceived a distinct name in all other cases where it is uttered by writing. 
But there has not happened to be any thing in particular that has disposed 
J tiankind in those cases to give it such a name. The case is, that among 
-he infinity of circumstances by which it might have been diversified, those 
; vhich constitute it a libel, happen to have engaged a peculiar share of 
} Attention on the part of the insti tutors of language ; either in virtue of the 
K nfluence which these circumstances have on the tendency of the act, or in 
irtue of any particular degree of force with which on any other account 
|D * hey may have disposed it to strike upon the imagination. 

Division of Offences. [CHAP. 

the faculty of influencing the sentiment of belief in other men \ 
whether by discourse or otherwise. The use of discourse is to 
influence belief, and that in such manner as to give other men 
to understand that things are as they are really. Falsehoods, of 
whatever kind they be, agree in this : that they give men to i 
understand that things are otherwise than as in reality they are. i 
the" differ XX H- Personation, forgery, and perjury, are each of them 
distinguished from other modes of uttering falsehood by certain 
special circumstances. When a falsehood is not accompanied 
by any of those circumstances, it maybe styled simple falsehood. 
These circumstances are, I. The/orm in which the falsehood is 
uttered. 2. The circumstance of its relating or not to the iden 
tity of the person of him who utters it. 3. The solemnity of the i 
occasion on which it is uttered 2 . The particular application j 
of these distinctive characters may more commodiously be ! 
reserved for another place 3 . 

Sub-. XXIII. We come now to the sub-divisions of offences by 

offlEaoee by falsehood. These will bring us back into the regular track of 
Se deter- analysis, pursued, without deviation, through the four preceding 

mined by -, 

the divisions classes. 

preceding By whatever means a mischief is brought about, whether 
falsehood be or be not of the number, the individuals liable toj 
be affected by it must either be assignable or unassignable. If ( 
assignable, there are but four material articles in respect to which I 
they can be affected : to wit, their persons, their properties, their 
reputations, and their conditions in life. The case is the same, * 
if, though unassignable, they are comprisable in any class subor-| 
dinate to that which is composed of the whole number of mem- 1 
bers of the state. If the falsehood tend to the detriment of the! 
whole state, it can only be by operating in one or other of the! 

1 See B. I. tit. [Falsehoods]. 

2 There are two other circumstances still more material ; viz. i. Th 
parties whose interest is affected by the falsehood : 2. The point or article i 
in which that interest is affected. These circumstances, however, entei ! 
not into the composition of the generical character. Their use is, as w< t 
shall see, to characterize the several species of each genus. See B. I. tit 

3 Ibid. 

xvi.] Division of Offences. 233 

characters, which every act that is an offence against the state 
must assume ; viz. that of an offence against external security, 
against justice, against the preventive branch of the police, 
against the public force, against the increase of the national 
felicity, against the public wealth, against the national popula 
tion, against the national wealth, against the sovereignty of the 
state, or against its religion. 

XXIV. It is the common property, then, of the offences that Offences of 
belong to this division, to run over the same ground that is Sein- 8 m 
occupied by those of the preceding classes. But some of them, Sjj their 
as we shall see, are apt, on various occasions, to drop or change SS not. 
the names which bring them under this division : this is chiefly 

the case with regard to simple falsehoods. Others retain their 
names unchanged; and even thereby supersede the names which 
would otherwise belong to the offences which they denominate : 
this is chiefly the case with regard to personation, forgery, and 
perjury. When this circumstance then, the circumstance of 
falsehood, intervenes, in some cases the name which takes the 
lead is that which indicates the offence by its effect ; in other 
cases, it is that which indicates the expedient or instrument as it 
were by the help of which the offence is committed. Falsehood, 
take it by itself, consider it as not being accompanied by any 
other material circumstances, nor therefore productive of any 
material effects, can never, upon the principle of utility, consti 
tute any offence at all. Combined with other circumstances, 
e.. there is scarce any sort of pernicious effect which it may not 
r-jl be instrumental in producing. It is therefore rather in com- 
fl pliance with the laws of language, than in consideration of the 
|K| nature of the things themselves, that falsehoods are made sepa- 
to ; rate mention of under the name and in the character of distinct 
i offences. All this would appear plain enough, if it were now a 
ft time for entering into particulars : but that is what cannot be 
* done, consistently with any principle of order or convenience, 
l ^ until the inferior divisions of those other classes shall have been 
previously exhibited. 

XXV. We come now to offences against trust. A trust is, 

324 Division of Offences. [CHAP. 

where there is any particular act which one party, in the exercise 
of some power, or some right l , which is conferred on him, is 

wh * ? owers though n t a species of rights (for the two sorts of fictitious 

complete 5efi entities, termed a power and a right, are altogether disparate) are yet so far 
given of them include . cl under rights, that wherever the word power may be employed, the 
word right may also be employed : The reason is, that wherever you may 
Bpeak of a person as having a power, you may also speak of him as having 
a right to such power : but the converse of this proposition does not hold 
good : there are cases in which, though you may speak of a man as having 
a right, you cannot speak of him as having a power, or in any other way 
make any mention of that word. On various occasions you have a right, 
for instance, to the services of the magistrate : but if you are a private per 
son, you have no power over him : all the power is on his side. This being 
the case, as the word right was employed, the word power might perhaps, 
without any deficiency in the sense, have been omitted. On the present 
occasion however, as in speaking of trusts this word is commonly made 
more use of than the word right, it seemed most eligible, for the sake of 
perspicuity, to insert them both. 

It maybe expected that, since the word trust has been here expounded, 
the words power and right, upon the meaning of which the exposition of 
the word trust is made to depend, should be expounded also : and certain 
it is, that no two words can stand more in need of it than these do. Such 
exposition I accordingly set about to give, and indeed have actually drawn 
up : but the details into which I found it necessary to enter for this pur 
pose, were of such length as to take up more room than could consistently 
be allotted to them in this place. With respect to these words, therefore, 
and a number of others, such as possession, title, and the like, which in point , 
of import are inseparably connected with them, instead of exhibiting the 
exposition itself, I must content myself with giving a general idea of the 
plan which I have pursued in framing it : and as to every thing else, I 
must leave the import of them to rest upon whatever footing it may happen 1 
to stand upon in the apprehension of each reader. Power and right, and 
the whole tribe of fictitious entities of this stamp, are all of them, in the , 
sense which belongs to them in a book of jurisprudence, the results of some 
manifestation or other of the legislator s will with respect to such or such 
an act. Now every such manifestation is either a prohibition, a command, , 
or their respective negations ; viz. a permission, and the declaration which 
the legislator makes of his will when on any occasion he leaves an act un- j 
commanded. Now, to render the expression of the rule more concise, the 
commanding of a positive act may be represented by the prohibition of the I 
negative act which is opposed to it. To know then how to expound a 
right, carry your eye to the act which, in the circumstances in question, : 
would be a violation of that right : the law creates the right by prohibiting 
that act. Power, whether over a man s own person, or over other persons, 
or over things, is constituted in the first instance by permission : but in as 
far as the law takes an active part in corroborating it, it is created by pro 
hibition, and by command : by prohibition of such acts (on the part of 
other persons) as are judged incompatible with the exercise of it; and upon 
occasion, by command of such acts as are judged to be necessary for the 
removal of such or such obstacles of the number of those which may occur 
to impede the exercise of it. For every right which the law confers on 
one party, whether that party be an individual, a subordinate class of 

xvi.] Division of Offences. 225 

bound to perform for the benefit of another. Or, more fully, 
thus : A party is said to be invested with a trust, when, being 
invested with a power, or with a right, there is a certain be 
haviour which, in the exercise of that power, or of that right, he 
is bound to maintain for the benefit of some other party. In 
such case, the party first mentioned is styled a trustee : for the 
other party, no name has ever yet been found : for want of a 

individuals, or the public, it thereby imposes on some other party a duty or 
obligation. But there may be laws which command or prohibit acts, that 
is, impose duties, without any other view than the benefit of the agent : 
these generate no rights : duties, therefore, may be either extra-regarding 
or self -regarding : extra-regarding have rights to correspond to them: self- 
regarding, none. 

That the exposition of the words power and right must, in order to be 

correct, enter into a great variety of details, may be presently made appear. 

One branch of the system of rights and powers, and but one, are those of 

which property is composed : to be correct, then, it must, among other 

things, be applicable to the whole tribe of modifications of which property 

is susceptible. But the commands and prohibitions, by which the powers 

and rights that compose those several modifications are created, are of 

many different forms : to comprise the exposition in question within the 

| compass of a single paragraph, would therefore be impossible : to take as 

I many paragraphs for it as would be necessary, in order to exhibit these 

different forms, would be to engage in a detail so ample, that the analysis 

j of the several possible species of property would compose only a part of it. 

j } This labour, uninviting as it was, I have accordingly undergone : but the 

result of it, as may well be imagined, seemed too voluminous and minute to 

I be exhibited in an outline like the present. Happily it is not necessary, 

j except only for the scientific purpose of arrangement, to the understanding 

of any thing that need be said on the penal branch of the art of legislation. 

8 In a work which should treat of the civil branch of that art, it would find 

jj its proper place : and in such a work, if conducted upon the plan of the 

I present one, it would be indispensable. Of the limits which seem to sepa 

rate the one of these branches from the other, a pretty ample description 

will be found in the next chapter : from which some further lights respect- 

ing the course to be taken for developing the notions to be annexed to the 

ie words right and power, may incidentally be collected. See in particular, 

16 3 and 4. See also par. Iv. of the present chapter. 

I might have cut this matter very short, by proceeding in the usual 
D| strain, and saying, that a power was a faculty, and that a right was a privi- 
= lege, and so on, following the beaten track of definition. But the inanity 
l5 > of such a method, in cases like the present, has been already pointed out 1 : 
as a power is not a anything: neither is a right a anything: the case is, 
j they have neither of them any superior genus : these, together with duty, 
obligation, and a multitude of others of the same stamp, being of the num- 
o" ber of those fictitious entities, of which the import can by no other means 
^ be illustrated than by showing the relation which they bear to real ones. 

See Fragment of Government, ch. v. 6, note. 


226 Division of Offences. [CHAP. 

name, there seems to be no other resource than to give a new 
and more extensive sense to the word beneficiary, or to say at 
length the party to be benefited l . 

The trustee is also said to have a trust conferred or imposed 
upon him, to be invested with a trust, to have had a trust given 
him to execute, to perform, to discharge, or to fulfil. The party 
to be benefited, is said to have a trust established or created in 
his favour : and so on through a variety of other phrases. 
Offences XXVI. Now it may occur, that a trust is oftentimes spoken 
Simeon- of as a species of condition 2 : that a trust is also spoken of as a, 

1 The first of these parties is styled in the law language, as well as in 
common speech, by the name here given to him. The other is styled, in^ 
the technical language of the English law, a cestuy que trust : in common 
speech, as we have observed, there is, unfortunately, no name for him. As 
to the law phrase, it is antiquated French, and though complex, it is still 
elliptical, and to the highest degree obscure. The phrase in full length 
would run in some such manner as this : cestuy al use de qui le trust es\\ 
cree : he to whose use the trust or benefit is created. In a particular case, 
a cestuy que trust is called by the Roman law, fidei-commissarius. In imi 
tation of this, I have seen him somewhere or other called in English &fidt-\ 
committee. This term, however, seems not very expressive. A fide-corn- \ 
mittee,or, as it should have been, a^dei-committee, seems, literally speak- 
ing, to mean one who is committed to the good faith of another. Goocl 
faith seems to consist in the keeping of a promise. But a trust may bi J 
created without any promise in the case. It is indeed common enough tl 
exact a promise, in order the more effectually to oblige a man to do tha I 
which he is made to promise he will do. But this is merely an accidental 
circumstance. A trust may be created without any such thing. What il 
it that constitutes a legal obligation in any case ? A command, express ojj 
virtual, together with punishment appointed for the breach of it. By th | 
same means may an obligation be constituted in this case as well as an;* 
other. Instead of the word beneficiary, which I found it necessary t 
adopt, the sense would be better expressed by some such word as beniy 
ficiendary (a word analogous in its formation to referendary], were it sue i 
an one as the ear could bring itself to endure. This would put it mor < 
effectually out of doubt, that the party meant was the party who ought t : 
receive the benefit, whether he actually receives it or no: whereas the word 
beneficiary might be understood to intimate, that the benefit was actuall : 
received : while in offences against trust the mischief commonly is, the 
such benefit is reaped not by the person it was designed for, but by son: tf 
other : for instance, the trustee. 

a It is for shortness sake that the proposition is stated as it stands i j 
the text. If critically examined, it might be found, perhaps, to be scarce] J 
justifiable by the laws of language. For the fictitious entities, chara* ( ! 
terised by the two abstract terms, trust and condition, are not subalterns 
but disparate. To speak with perfect precision, we should say that he wl 
is invested with a trust is, on that account, spoken of as being invest* 

xvi.] Division of Offences. 227 

species of property : and that a condition itself is also spoken of dition, and 
in the same light. It may be thought, therefore, that in the first why ranked 
class, the division of offences against condition should have been separate 
included under that of the offences against property : and that 
at any rate, so much of the fifth class now before us as contains 
offences against trust, should have been included under one or 
other of those two divisions of the first class. But upon exami 
nation it will appear, that no one of these divisions could with 
convenience, nor even perhaps with propriety, have been included 
under either of the other two. It will appear at the same time, 
that there is an intimate connection subsisting amongst them 
all : insomuch that of the lists of the offences to which they are 
respectively exposed, any one may serve in great measure as a 
model for any other. There are certain offences to which all 
trusts as such are exposed : to all these offences every sort of 
condition will be found exposed : at the same time that par 
ticular species of the offences against trust will, upon their 
application to particular conditions, receive different particular 
denominations. It will appear also, that of the two groups of 
offences into which the list of those against trust will be found 
naturally to divide itself, there is one, and but one, to which 
property, taken in its proper and more confined sense, stands 
exposed : and that these, in their application to the subject of 
property, will be found susceptible of distinct modifications, to 
which the usage of language, and the occasion there is for dis 
tinguishing them in point of treatment, make it necessary to 
find names. 

In the first place, as there are, or at least may be (as we shall 
see) conditions which are not trusts 1 , so there are trusts of which 
the idea would not be readily and naturally understood to be 
included under the word condition : add to which, that of those 
conditions which do include a trust, the greater number include 
other ingredients along with it : so that the idea of a condition, 

^ with a condition : viz. the condition of a trustee. We speak of the condi- 
j tion of a trustee as we speak of the condition of a husband or a father. 
;!l j * Infra, Iv. 


228 Division of Offences. [CHAP. 

if on the one hand it stretches beyond the idea of a trust, does 
on the other hand fall short of it. Of the several sorts of trusts, 
by far the most important are those in which it is the public 
that stands in the relation of beneficiary. Now these trusts, it 
should seem, would hardly present themselves at first view upon 
the mention of the word condition. At any rate, what is more 
material, the most important of the offences against these kinds 
of trust would not seem to be included under the denomina 
tion of offences against condition. The offences which by this ;| 
latter appellation would be brought to view, would be such j 
only as seemed to affect the interests of an individual : of 
him, for example, who is considered as being invested with j 
that condition. But in offences against public trust, it is the J 
influence they have on the interests of the public that constitutes j 
by much the most material part of their pernicious tendency : i 
the influence they have on the interests of any individual, the 
only part of their influence which would be readily brought to 
view by the appellation of offences against condition, is com- . 
paratively as nothing. The word trust directs the attention at ? 
once to the interests of that party for whom the person in ques 
tion is trustee : which party, upon the addition of the epithet 
public, is immediately understood to be the body composed of 
the whole assemblage, or an indefinite portion of the whole as 
semblage of the members of the state. The idea presented by^ ( 
the words public trust is clear and unambiguous : it is but an I 
obscure and ambiguous garb that that idea could be expressed 
in by the words public condition. It appears, therefore, that the 
principal part of the offences, included under the denomination , 
of offences against trust, could not, commodiously at least, have 
been included under the head of offences against condition, 

It is evident enough, that for the same reasons neither could 
they have been included under the head of offences against 
property. It would have appeared preposterous, and would 
have argued a total inattention to the leading principle of the 
whole work, the principle of utility, to have taken the most 
mischievous and alarming part of the offences to which the 

xvi.] Division of Offences. 229 

public stands exposed, and forced them into the list of offences 
against the property of an individual : of that individual, to wit, 
who in that case would be considered as having in him the 
property of that public trust, which by the offences in question 
is affected. 

Nor would it have been less improper to have included con 
ditions, all of them, under the head of property : and thereby 
the whole catalogue of offences against condition, under the 
catalogue of offences against property. True it is, that there are 
offences against condition, which perhaps with equal propriety, 
and without any change in their nature, might be considered in 
the light of offences against property : so extensive and so vague 
are the ideas that are wont to be annexed to both these objects. 
But there are other offences which though with unquestionable 
propriety they might be referred to the head of offences against 
condition, could not, without the utmost violence done to lan 
guage, be forced under the appellation of offences against 
property. Property, considered with respect to the proprietor, 

: implies invariably a benefit, and nothing else : whatever obliga- 

1 tions or burthens may, by accident, stand annexed to it, yet in 
itself it can never be otherwise than beneficial. On the part of 

j the proprietor, it is created not by any commands that are laid 
on him, but by his being left free to do with such or such an 
article as he likes. The obligations it is created by, are in every 
instance laid upon other people. On the other hand, as to con- 

i ditions, there are several which are of a mixed nature, importing 

f as well a burthen to him who stands invested with them as a 
benefit : which indeed is the case with those conditions which we 

f hear most of under that name, and which make the greatest 

i There are even conditions which import nothing but burthen, 
without any spark of benefit. Accordingly, when between two 
parties there is such a relation, that one of them stands in the 

. place of an object of property with respect to the other; the word 
property is applied only on one side ; but the word condition is 
applied alike to both : it is but one of them that is said on that 

230 Division of Offences. [CHAP. 

aecounttobe possessed of a property ; but both of them are alike 
spoken of as being possessed of or being invested with a con 
dition : it is the master alone that is considered as possessing a pro 
perty, of which the servant, in virtue of the services he is bound 
to render, is the object : but the servant, not less than the master, 
is spoken of as possessing or being invested with a condition. 
The case is, that if a man s condition is ever spoken of as 
constituting an article of his property, it is in the same loose and ,! 
indefinite sense of the word in which almost every other offence 
that could be imagined might be reckoned into the list of 
offences against property. If the language indeed were in every 
instance, in which it made use of the phrase, object of property, ; 
perspicuous enough to point out under that appellation the ! 
material and really existent body, the person or the thing in J 
which those acts terminate, by the performance of which the i| 
property is said to be enjoyed ; if, in short, in the import given 
to the phrase object of property, it made no other use of it than 
the putting it to signify what is now called a corporeal object, \ 
this difficulty and this confusion would not have occurred. But . 
the import of the phrase object of property, and in consequence ( 
the import of the word property, has been made to take a much | 
wider range. In almost every case in which the law does any i 
thing for a man s benefit or advantage, men are apt to speak of \ 
it, on some occasion or other, as conferring on him a sort of 
property. At the same time, for one reason or other, it has in 
several cases been not practicable, or not agreeable, to bring to 
view, under the appellation of the object of his property, the thing 
in which the acts, by the performance of which the property is 
said to be enjoyed, have their termination, or the person in 
whom they have their commencement. Yet something which 
could be spoken of under that appellation was absolutely requi 
site 1 . The expedient then has been to create, as it were, or 

1 It is to be observed, that in common speech, in the phrase the object o, 
a man s property, the words the object q/ are commonly left out; and by ar 
ellipsis, which, violent as it is, is now become more familiar than the phras< 
at length, they have made that part of it which consists of the words c 
man s property perform the office of the whole. In some cases then i 

xvi.] Division of Offences. 231 

every occasion, an ideal being, and to assign to a man this ideal 
being for the object of his property: and these are the sort of 
objects to which men of science, in taking a view of the opera 
tions of the law in this behalf, came, in process of time, to give 
the name of incorporeal. Now of these incorporeal objects of 
property the variety is prodigious. Fictitious entities of this 
kind have been fabricated almost out of every thing : not con 
ditions only (that of a trustee included), but even reputation 
have been of the number. Even liberty has been considered in 
this same point of view : and though on so many occasions it is 
contrasted with property, yet on other occasions, being reckoned 
into the catalogue of possessions, it seems to have been con 
sidered as a branch of property. Some of these applications of 
the words property, object of property (the last, for instance), are 
looked upon, indeed, as more figurative, and less proper than 
the rest : but since the truth is, that where the immediate object 
is incorporeal, they are all of them improper, it is scarce prac 
ticable any where to draw the line. 

Notwithstanding all this latitude, yet, among the relations in 

. was only on a part of the object that the acts in question might be per- 

I formed: and to say, on this account, that the object was a man s property, 
I was as much as to intimate that they might be performed on any part. In 

> other cases it was only certain particular acts that might be exercised on 

,{ the object : and to say of the object that it was his property, was as much 

, as to intimate that any acts whatever might be exercised on it. Some- 

II times the acts in question were not to be exercised but at a future time, 
11 nor then, perhaps, but in the case of the happening of a particular event, 

of which the happening was uncertain : and to say of an object that it was 

his property, was as much as to intimate that the acts in question might 
IP be exercised on it at any time. Sometimes the object on which the acts in 

question were to have their termination, or their commencement, was a 
1S human creature : and to speak of one human creature as being the property 
I of another is what would shock the ear every where but where slavery is 

established, and even there, when applied to persons in any other condition 
C* than that of slaves. Among the first Romans, indeed, the wife herself was 
nj. the property of her husband ; the child, of his father ; the servant, of his 

master. In the civilised nations of modern times, the two first kinds of 
01 property are altogether at an end : and the last, unhappily not yet at an 

end, but however verging, it is to be hoped, towards extinction. The hus- 
j (1 band s property is now the company 1 of his wife ; the father s the guardian- 
,5! ship and service of his child ; the master s, the service of his servant. 


1st The consortium, says the English Law. 


Division of Offences. [CHAP. 

virtue of which you are said to be possessed of a condition,there 
is one at least which can scarcely, by the most forced construc 
tion, be said to render any other man, or any other thing, the 
object of your property. This is the right of persevering in a 
certain course of action ; for instance, in the exercising of a 
certain trade. Now to confer on you this right, in a certain 
degree at least, the law has nothing more to do than barely to 
abstain from forbidding you to exercise it. Were it to go 
farther, and, for the sake of enabling you to exercise your trade 
to the greater advantage, prohibit others from exercising the 
like, then, indeed, persons might be found, who in a certain sense, 
and by a construction rather forced than otherwise, might be 
spoken of as being the objects of your property : viz. by being 
made to render you that sort of negative service which consists 
in the forbearing to do those acts which would lessen the profits 
of your trade. But the ordinary right of exercising any such 
trade or profession, as is not the object of a monopoly, imports 
no such thing; and yet, by possessing this right, a man is 
said to possess a condition : and by forfeiting it, to forfeit his 

After all, it will be seen, that there must be cases in which, 
according to the usage of language, the same offence may, with i 
more or less appearance of propriety, be referred to the head of j 
offences against condition, or that of offences against property, 
indifferently. In such cases the following rule may serve for 
drawing the line. Wherever, in virtue of your possessing a 
property, or being the object of a property possessed by another, 
7011 are characterised, according to the usage of language, by a 
particular name, such as master, servant, husband, wife, steward, 
agent, attorney, or the like, there the word condition may be 
employed in exclusion of the word property : and an offence in 
which, in virtue of your bearing such relation, you are con 
cerned, either in the capacity of an offender, or in that of a party 
inj ured, may be referred to the head of off ences against condition, 
and not to that of offences against property. To give an ex- < 
ample : Being bound, in the capacity of land steward to a certain 

xvi.] Division of Offences. 233 

person, to oversee the repairing of a certain bridge, you forbear 
to do so : in this case, as the services you are bound to render 
are of the number of those which give occasion to the party, 
from whom they are due, to be spoken of under a certain gene- 
rical name, viz. that of land steward, the offence of withholding 
them may be referred to the class of offences against condition. 
But suppose that, without being engaged in that general and 
miscellaneous course of service, which with reference to a par 
ticular person would denominate you his land steward, you were 
bound, whether byusage or by contract, to render himthatsingle 
sort of service which consists in the providing, by yourself or by 
others, for the repairing of that bridge : in this case, as there is 
not any such current denomination to which, in virtue of your 
being bound to render this service, you stand aggregated (for 
that of architect, mason, or the like, is not here in question), the 
offence you commit by withholding such service cannot with 
propriety be referred to the class of offences against condition : 
it can only therefore be referred to the class of offences against 

By way of further distinction, it may be remarked,that where 
a man, in virtue of his being bound to render, or of others being 
bound to render him, certain services, is spoken of as possessing 
a condition, the assemblage of services is generally so consider 
able, in point of duration, as to constitute a course of con 
siderable length, so as on a variety of occasions to come to be 
varied and repeated : and in most cases, when the condition is 
not of a domestic nature, sometimes for the benefit of one per 
son, sometimes for that of another. Services which come to be 
rendered to a particular person on a particular occasion, espe 
cially if they be of short duration, have seldom the effect of 
occasioning either party to be spoken of as being invested with 
a condition. The particular occasional services which one man 
may come, by contract or otherwise, to be bound to render to 
another, are innumerably various : butthe number of conditions 
which have names may be counted, and are, comparatively, 
but few. 

234 Division of Offences. [CHAP- 

If after all, notwithstanding the rule here given for separating 
conditions from articles of property, any object should present 
itself which should appear to be referable, with equal propriety, 
to either head, the inconvenience would not be material ; since 
in such cases, as will be seen a little farther on, whichever appel 
lation were adopted, the list of the offences, to which the object 
stands exposed, would be substantially the same. 

These difficulties being cleared up, we now proceed to ex 
hibit an analytical view of the several possible offences against 
offences XXVII. Offences against trust may be distinguished, in the 

against trust . J 

their first place, into such as concern the existence of the trust in the 


with each hands oi such or such a person, and such as concern the exercise, \ 
of the functions that belong to it 1 . First then, with regard to J 
such as relate to its existence. An offence of this description, I 

1 We shall have occasion, a little farther on, to speak of the person in 
whose hands the trust exists, under the description of the person who pos 
sesses, or is in possession of it, and thence of the possession of the trust 
abstracted from the consideration of the possessor. However different the , 
expression, the import is in both cases the same. So irregular and imper- 
feet is the structure of language on this head, that no one phrase can be j 
made to suit the idea on all the occasions on which it is requisite it should i 
be brought to view : the phrase must be continually shifted, or new modi- I 
fied : so likewise in regard to conditions, and in regard to property. The j 
being invested with, or possessing a condition; the being in possession of 
an article of property, that is, if the object of the property be corporeal; ; I 
. the having a legal title (defeasible or indefeasible) to the physical possession , 
of it, answers to the being in possession of a trust, or the being the person 
in whose hands a trust exists. In like manner, to the exercise of the/wwc-j 
tions belonging to a trust, or to a condition, corresponds the enjoyment of an 
article of property; that is, if the object of it be corporeal, the occupation. 
These verbal discussions are equally tedious and indispensable. Striving; 
to cut a new road through the wilds of jurisprudence, I find myself con 
tinually distressed, for want of tools that are fit to work with. To frame a; 
complete set of new ones is impossible. All that can be done is, to make 
here and there a new one in cases of absolute necessity, and for the rest, to 
patch up from time to time the imperfections of the old. 

As to the bipartition which this paragraph sets out with, it must be 
acknowledged not to be of the nature of those which to a first glance afford 
a sort of intuitive proof of their being exhaustive. There is not thai 
marked connection and opposition between the terms of it, which subsists 
between contradictory terms and between terms that have the same 
common genus. I imagine, however, that upon examination it would b 
found to be exhaustive notwithstanding: and that it might even be demon 
strated so to be. But the demonstration would lead us too far out of tht 
ordinary track of language. 

xvi.] Division of Offences. 235 

like one of any other description, if an offence it ought to be, 

must to some person or other import a prejudice. This prejudice 

maybe distinguished into two branches : i. That which may fall 

on such persons as are or should be invested with the trust : 

2. That which may fall on the persons for whose sake it is or 

should be instituted, or on other persons at large. To begin 

with the former of these branches. Let any trust be conceived. 

] The consequences which it is in the nature of it to be productive 

J of to the possessor, must, in as far as they are material l , be 

I either of an advantageous or of a disadvantageous nature : in as 

j far as they are advantageous, the trust may be considered as a 

j benefit or privilege : in as far as they are disadvantageous, it may 

be considered as a burthen 2 . To consider it then upon the 

footing of a benefit. The trust either is of the number of those 

which ought by law to subsist 3 ; that is, which the legislator 

1 See ch. vii. [Actions], iii. 

2 If advantageous, it will naturally be on account of the powers or rights 
that are annexed to the trust: if disadvantageous, on account of the duties. 

3 It may seem a sort of anachronism to speak on the present occasion of 
a trust, condition, or other possession, as one of which it may happen that 
a man ought or ought not to have had possession given him by the law, 
for, the plan here set out upon is to give such a view all along of the laws 
that are proposed, as shall be taken from the reasons which there are for 
making them : the reason then it would seem should subsist before the 
law : not the law before the reason. Nor is this to be denied : for, unques 
tionably, upon the principle of utility, it may be said with equal truth of 
those operations by which a trust, or any other article of property, is insti 
tuted, as of any other operations of the law, that it never can be expedient 
they should be performed, unless some reason for performing them, deduced 
from that principle, can be assigned. To give property to one man, you 
must impose obligation on another : you must oblige him to do something 
which he may have a mind not to do, or to abstain from doing something 
which he may have a mind to do : in a word, you must in some way or 
other expose him to inconvenience. Every such law, therefore, must at 
any rate be mischievous in the first instance ; and if no good effects can be 
produced to set against the bad, it must be mischievous upon the whole. 
Some reasons, therefore, in this case, as in every other, there ought to be. 
The truth is, that in the case before us, the reasons are of too various and 
complicated a nature to be brought to vie win an analytical outline like the 
present. Where the offence is of the number of those by which person or 
reputation are affected, the reasons for prohibiting it lie on the surface, and 
apply to every man alike. But property, before it can be offended against, 
must be created, and at the instant of its creation distributed, as it were, 
into parcels of different sorts and sizes, which require to be assigned, some 
to one man and some to another, for reasons, of which many lie a little out 
of sight, and which being different in different cases, would take up more 

236 Division of Offences. [CHAP. 

meant should be established ; or is not. If it is, the possession 
which at any time you may be deprived of, with respect to it, 
must at that time be either present or to come : if to come (in 
which case itmaybe regarded either as certain or as contingent), 
the investitive event, or event from whence your possession of it 
should have taken its commencement, was either an event in the 
production of which the will of the offender should have been 
instrumental, or any other event at large : in the former 
case, the offence may be termed wrongful non-investment of 
trust : in the latter case, wrongful interception of trust l . If at 
the time of the offence whereby you are deprived of it, you 
were already in possession of it, the offence may be styled 
wrongful divestment of trust. In any of these cases, the effect of 
the offence is either to put somebody else into the trust, or not : 
if not, it is wrongful divestment, wrongful interception, or 
wrongful divestment, and nothing more : if it be, the person put 
in possession is either the wrong- doer himself, in which case it 
may be styled usurpation of trust ; or some other person, in 
which case it may be styled wrongful investment, or attribution, 

room than could consistently be allotted to them here. For the present 
purpose, it is sufficient if it appear, that for the carrying on of the several 
purposes of life, there are trusts, and conditions, and other articles of pro 
perty, which must be possessed by somebody : and that it is not every 
article that can, nor every article that ought, to be possessed by every 
body. What articles ought to be created, and to what persons, and in 
what cases they ought to be respectively assigned, are questions which 
cannot be settled here. Nor is there any reason for wishing that they 
could, since the settling them one way or another is what would make no 
difference in the nature of any offence whereby any party may be exposed, 
on the occasion of any such institution, to sustain a detriment. 

1 In the former case, it may be observed, the act is of the negative kind : 
in the latter, it will commonly be of the positive kind. 

As to the expression non-investment of trust, I am sensible that it is not 
perfectly consonant to the idiom of the language : the usage is to speak of 
a person as being invested (that is clothed) with a trust, not of a trust as 
of a thing that is itself invested or put on. The phrase at length would 
be, the non-investment of a person with a trust : but this phrase is by 
much too long-winded to answer the purpose of an appellative. I saw, 
therefore, no other resource than to venture upon the ellipsis here employed. 
The ancient lawyers, in the construction of their appellatives, have indulged 
themselves in much harsher ellipsises without scruple. See above, xxv. 
note. It is already the usage to speak of a trust as a thing that vests, and 
as a thing that may be 

xvi.] Division of Offences. 237 

of trust. If the trust in question is not of the number of those 
which ought to subsist, it depends upon the manner in which 
one man deprives another of it, whether such deprivation shall 
or shall not be an offence, and, accordingly, whether non-invest 
ment, interception, or divestment, shall or shall not be wrongful. 
But the putting any body into it must at any rate be an offence : 
and this offence may be either usurpation or wrongful invest 
ment, as before. 

In the next place, to consider it upon the footing of a burthen. 
In this point of view, if no other interest than that of the persons 
liable to be invested with it were considered, it is what ought 
not, upon the principle of utility, to subsist : if it ought, it can 
nly be for the sake of the persons in whose favour it is estab 
lished. If then it ought not on any account to subsist, neither 
non-investment, interception, nor divestment, can be wrongful 
with relation to the persons first mentioned, whatever they may 
be on any other account, in respect of the manner in which they 
lappen to be performed : for usurpation, though not likely to be 
committed, there is the same room as before : so likewise is there 
i:or wrongful investment ; which, in as far as the trust is con- 
iUidered as a burthen, may be styled wrongful imposition of trust. 
I the trust, being still of the burthensome kind, is of the 
lumber of those which ought to subsist, any offence that can be 
;ommitted, with relation to the existence of it, must consist 
dther in causing a person to be in possession of it, who ought 
wt tobe, or in causing a person not to be in possession of it who 
<ught to be : in the former case, it must be either usurpation or 
, 1 wrongful divestment, as before : in the latter case, the person 
is caused to be not in possession, is either the wrong-doer 
ilmself, or some other : if the wrong-doer himself, either at the 
iime of the offence he was in possession of it, or he was not : if 
.e was, it may be termed wrongful abdication of trust ; if not, 
wrongful detrectation 1 or non-assumption : if the person, whom 

1 I do not find that this word has yet been received into the English 
mguage. In the Latin, however, it is very expressive, and is used in a 
jnse exactly suitable to the sense here given to it. Militiam detrectare, 

238 Division of Offences. [CHAP. 

the offence causes not to be in the trust, is any other person, the 
offence must be either wrongful divestment, wrongful non-invest 
ment, or wrongful interception, as before : in any of which cases 
to consider the trust in the light of a burthen, it might also be 
styled wrongful exemption from trust. 

Lastly, with regard to the prejudice which the persons for 
whose benefit the trust is instituted, or any other persons whose 
interests may come to be affected by its existing or not existing 
in such or such hands, are liable to sustain. Upon examination 
it will appear, that by every sort of offence whereby the persons 
who are or should be in possession of it are liable, in that respect, 
to sustain a prejudice, the persons now in question are also liable 
to sustain a prejudice. The prejudice, in this case, is evidently 
of a very different nature from what it was of in the other : but 
the same general names will be applicable in this case as in that. 
If the beneficiaries, or persons whose interests are at stake upon 
the exercise of the trust, or any of them, are liable to sustain a 
prejudice, resulting from the quality of the person by whom 1$ 
may be filled, such prejudice must result from the one or the 
other of two causes : i. From a person s having the possession 
of it who ought not to have it : or 2. From a person s not having 
it who ought : whether it be a benefit or burthen to the possessor, 
is a circumstance that to this purpose makes no difference. In | 
the first of these cases the offences from which the prejudice takes (, 
its rise are those of usurpation of trust, wrongful attribution of | t 
trust, and wrongful imposition of trust : in the latter, wrongful 
non-investment of trust, wrongful interception of trust, wrongful 
divestment of trust, wrongful abdication of trust, and wrongful !; 
detrectation of trust. 

So much for the offences which concern the existence or pos- 
session of a trust : those which concern the exercise of the func 
tions that belong to it may be thus conceived. You are in 
possession of a trust : the time then for your acting in it must, 
on any given occasion, (neglecting, for simplicity s sake, the then 

to endeavour to avoid serving in the army, is a phrase not unfrequently 
met with in the Roman writers. 

xvi.] Division of Offences. 


present instant) be either past or yet to come. If past, your 
conduct on that occasion must have been either conformable to 
the purposes for which the trust was instituted, or unconform- 
able : if conformable, there has been no mischief in the case : if 
unconformable, the fault has been either in yourself alone, or in 
some other person, or in both : in as far as it has lain in yourself, 
it has consisted either in your not doing something which you 
ought to do, in which case it may be styled negative breach of 
trust ; or in your doing something which you ought not to do : 
if in the doing something which you ought not to do, the party 
to whom the prejudice has accrued is either the same for whose 
benefit the trust was instituted, or some other party at large : 
in the former of these cases, the offence may be styled positive 
breach of trust ; in the other, abuse of trust 1 . In as far as 
the fault lies in another person, the offence on his part may 
be styled disturbance of trust. Supposing the time for your 
acting in the trust to be yet to come, the effect of any act which 
tends to render your conduct unconformable to the purposes 
of the trust, may be either to render it actually and eventually 
unconformable, or to produce a chance of its being so. In the 
former of these cases, it can do no otherwise than take one or 
other of the shapes that have justbeen mentioned. In the latter 
case, the blame must lie either in yourself alone, or in some 
other person, or in both together, as before. If in another person, 
the acts whereby he may tend to render your conduct uncon- 

1 What is here meant by abuse of trust, is the exercise of a power 

usurped over strangers, under favour of the powers properly belonging to 

the trust. The distinction between what is here meant by breach of trust, 

and what is here meant by abuse of trust, is not very steadily observed in 

common speech : and in regard to public trusts, it will even in many cases 

be imperceptible. The two offences are, however, in themselves perfectly 

i distinct : since the persons, by whom the prejudice is suffered, are in many 

cases altogether different. It may be observed, perhaps, that with regard 

to abuse of trust, there is but one species here mentioned ; viz. that which 

corresponds to positive breach of trust : none being mentioned as corre- 

| spending to negative breach of trust. The reason of this distinction will 

; presently appear. In favour of the parties, for whose benefit the trust was 

, treated, the trustee is bound to act ; and therefore merely by his doing 

nothing they may receive a prejudice : but in favour of other persons at 

large he is not bound to act : and therefore it is only from some positive 

act on his part that any prejudice can ensue to them. 

240 Division of Offences. [CPIAP. 

formable, must be exercised either on yourself, or on other ob 
jects at large. If exercised on yourself, the influence they pos 
sess must either be such as operates immediately on your body, 
or such as operates immediately on your mind. In the latter 
case, again, the tendency of them must be to deprive you 
either of the knowledge, or of the power, or of the inclina 
tion 1 , which would be necessary to your maintaining such a 
conduct as shall be conformable to the purposes in question. If 
they be such, of which the tendency is to deprive you of the in 
clination in question, it must be by applying to your will the 
force of some seducing motive 2 . Lastly, This motive must be 
either of the coercive, or of the alluring kind ; in other words, 
it must present itself either in the shape of a mischief or of an 
advantage. Now in none of all the cases that have been men 
tioned, except the last, does the offence receive any new denoir i- 
nation ; according to the event it is either a disturbance of trust, 
or an abortive attempt to be guilty of that offence. In this last 
it is termed bribery ; and it is that particular species of it which \ 
may be termed active bribery, or bribe-giving. In this case, to $ 
consider the matter on your part, either you accept of the bribe, n 
or you do not : if not, and you do not afterwards commit, or go III 
about to commit, either a breach or an abuse of trust, there is it 
no offence, on your part, in the case : if you do accept it, whether I 
you eventually do or do not commit the breach or the abuse m 
which it is the bribe-giver s intention you should commit, you * 
at any rate commit an offence which is also termed bribery : and m 
which, for distinction sake, may be termed passive bribery, or t 
bribe-taking 3 . As to any farther distinctions, they will depend :ja 

1 See infra, liv. note ; and ch. xviii. [Indirect Legislation]. 

2 See ch. xi. [Dispositions], xxix. 

3 To bribe a trustee, as such, is in fact neither more nor less than to 
suborn him to be guilty of a breach or an abuse of trust. Now subornation is 
of the number of those accessor?/ offences whicheveryprincipaloffence,oneas ; 1 
well as another, is liable to be attended with. See infra, xxxi. note ; and B. I. |r . 
tit. [Accessory offences]. This particular species of subornation however 
being one that, besides its having a specific name framed to express it, is b; 
apt to engage a peculiar share of attention, and to present itself to view ... 
in company with other offences against trust, it would have seemed an f 
omission not to have included it in that catalogue. 

xvi.] Division of Offences. 241 

upon the nature of the particular sort of trust in question, and 
^therefore belong not to the present place. And thus we have 
thirteen sub-divisions of offences against trust: viz. i. Wrongful 
non-investment of trust. 2. Wrongful interception of trust. 
13. Wrongful divestment of trust. 4. Usurpation of trust. 
,5. Wrongful investment or attribution of trust. 6. Wrongful 
kbdicationof trust. 7.Wrongfuldetrectationof trust. 8. Wrong 
ful imposition of trust. 9. Negative breach of trust. 10. Posi- 

ive breach of trust. II. Abuse of trust. 12. Disturbance of 

rust. 13. Bribery. 

XXVIII. From what has been said, it appears that there Prodigality 
annot be any other offences, on the part of a trustee, by which dismissed to 

, . J . . . . . Class 3. 

beneficiary can receive on any particular occasion any assign- 

ble specific prejudice. One sort of acts, however, there are by 

rhich a trustee may be put in some danger of receiving a pre- 

udice, although neither the nature of the prejudice, nor the 

ccasion on which he is in danger of receiving it, should be 

ssignable. These can be no other than such acts, whatever they 

my be, as dispose the trustee to be acted upon by a given bribe 

I ith greater effect than any with which he could otherwise be 

!;cted upon : or in other words, which place him in such circum- 

;ances as have a tendency to increase the quantum of his sensi- 

ility to the action of any motive of the sort in question 1 . Of 

lese acts, there seem to be no others, that will admit of a de- 

;ription applicable to all places and times alike, than acts of 

odigality on the part of the trustee. But in acts of this nature 

te prejudice to the beneficiary is contingent only and unliqui- 

ited ; while the prejudice to the trustee himself is certain and 

luidated. If therefore on any occasion it should be found 

Ivisable to treat it on the footing of an offence, it will find its 

ace more naturally in the class of self-regarding ones. 

XXIX. As to the subdivisions of offences against trust, these The sub- 

i r i i i mi divisions of 

e perfectly analogous to those of offences by talsenooa. Ine offences 

. .. ., against trust 

i fist may be private, semi-public, or public : it may concern are also 

^ ! operty, person, reputation, or condition ; or any two or more ] )y the 

1 See ch. vi. [Sensibility] ii. 


243 Division of Offences. [CHAP. 

divisions of of those articles at a time : as will be more particularly ex- : 
ceding plained in another place. Here too the offence, in running over ! 
the ground occupied by the three prior classes, will in some 
instances change its name, while in others it will not. 

XXX. Lastly, if it be asked, What sort of relation there sub- i 
sists between falsehoods on one hand, and offences concerning 
and offences trust on the other hand ; the answer is, they are altogether dis 
trust, parate. Falsehood is a circumstance that may enter into the 
composition of any sort of offence, those concerning trust, as well 
as any other : in some as an accidental, in others as an essen 
tial instrument. Breach or abuse of trust are circumstances 
which, in the character of accidental concomitants, may enter! 
into the composition of any other off ences (those against falsehood 
included) besides those to which they respectively give name. 

3. Genera of Class I. 

Analysis XXXI. Returning now to class the first, let us pursue the. 
pursued no distribution a step farther, and branch out the several divisions f 1 
Class*!. an of that class, as above exhibited, into their respective genera, E 
that is, into such minuter divisions as are capable of being cha- ; " 
racterised by denominations of which a great part are already* 
current among the people 1 . In this place the analysis must & 
stop. To apply it in the same regular form to any of the other J 
classes seems scarcely practicable : to semi-public, as also to ~ 
public offences, on account of the interference of local circum- f< 
stances : to self -regarding ones, on account of the necessity it? j 
would create of deciding prematurely upon points which may ^ 
appear liable to controversy : to offences by falsehood, and * 
offences against trust, on account of the dependence there is 
between this class and the three former. What remains tow 
be done in this way, with reference to these four classes, will t 

1 In the enumeration of these genera, it is all along to be observed, 
that offences of an accessory nature are not mentioned ; unless it be here 
and there where they have obtained current names which seemed too much , 
in vogue to be omitted. Accessory offences are those which, without being 
the very acts from which the mischief in question takes its immediate rise, i 
are, in the way of causality, connected with those acts. See ch. vii. 
[Actions] xxiv. and B. I. tit. [Accessory offences]. 

Division of Offences. 243 

require discussion, and will therefore be introduced with more 
Dropriety in the body of the work, than in a preliminary part, of 
vhich the business is only to draw outlines. 

XXXII. An act, by which the happiness of an individual Offences 
s disturbed, is either simple in its effects or complex. It mdividuai 
jnay be styled simple in its effects, when it affects him in 
Inly of the articles or points in which his interest, as we have 
een, is liable to be affected : complex, when it affects him in 
jeveral of those points at once. Such as are simple in their 
fffects must of course be first considered. 

j XXXIII. In a simple way, that is in one way at a time, a offences 
Uan s happiness is liable to be disturbed either i. By actions JSsioS- 
bf erring to his own person itself ; or 2. By actions referring t o theirgenerai 
Ijich external objects on which his happiness is more or less de- 
jendent. As to his own person, it is composed of two different 
8 arts, or reputed parts, his body and his mind. Acts which 
jsert a pernicious influence on his person, whether it be on the 
jbrporeal or on the mental part of it, will operate thereon either 
immediately, and without affecting his will, or mediately, through 
tie intervention of that faculty : viz. by means of the influence 
hich they cause his will to exercise over his body. If with the 
Intervention of his will, it must be by mental coercion : that is, 
IP causing him to will to maintain, and thence actually to main-, a certain conduct which it is disagreeable, or in any other 
ay pernicious, to him to maintain. This conduct may either be 
j; )sitive or negative 1 : when positive, the coercion is styled com- 
ilsion or constraint : when negative, restraint. Now the way 
which the coercion is disagreeable to him, may be by pro- 
icing either pain of body, or only pain of mind. If pain of 
dy is produced by it, the offence will come as well under this 
under other denominations, which we shall come to presently, 
oreover, the conduct which a man, by means of the coercion, is 
cced to maintain, will be determined either specifically and 
iginally, by the determination of the particular acts them- 
Ives which he is forced to perform or to abstain from, or 

1 Ch. vii. [Actions] viii. 
R 2 

244 Division of Offences. [CHAP. 

generally and incidentally, by means of his being forced to be or 
not to be in such or such a place. But if he is prevented from 
being in one place, he is confined thereby to another. For the 
whole surface of the earth, like the surface of any greater or ; 
lesser body, may be conceived to be divided into two, as well as 
into any other number of parts or spots. If the spot then, which 
he is confined to, be smaller than the spot which he is excluded 
from, his condition may be called confinement : if larger, banish 
ment 1 . Whether an act, the effect of which is to exert a per-j 
nicious influence on the person of him who suffers by it, operates 
with or without the intervention of an act of his will, the mis-j 
chief it produces will either be mortal or not mortal. If not 
mortal, it will either be reparable, that is temporary ; or irre-> 
parable, that is perpetual. If reparable, the mischievous act, 
may be termed a simple corporal injury ; if irreparable, an. 
irreparable corporal injury. Lastly, a pain that a man experi-J 
ences in his mind will either be a pain of actual sufferance, or a^ 
pain of apprehension. If a pain of apprehension, either the! 
offender himself is represented as intending to bear a part in the 
production of it, or he is not. In the former case the offence J 
may be styled menacement : in the latter case, as also where the >r 
pain is a pain of actual sufferance, a simple mental injury. And r 
thus we have nine genera or kinds of personal injuries ; which, i 
when ranged in the order most commodious for examination, | 
will stand as follows ; viz. I. Simple corporal injuries. 2. Ir-4 
reparable corporal injuries. 3. Simple injurious restrainment. ^ 
4. Simple injurious compulsion 2 . 5. Wrongful confinement. -k 

1 Of these, and the several other leading expressions which there is occa- J; 
sion to bring to view in the remaining part of this analysis, ample defini- s 
tions will be found in the body of the work, conceived in terminis legis. To ; . 
give particular references to these definitions, would be encumbering the |," 
page to little purpose. 

2 Injurious restrainment at large, and injurious compulsion at large, are \,. 
here styled simple, in order to distinguish them from confinement, banish- I 
ment, robbery, and extortion ; all which are, in many cases, but so many , 
modifications of one or other of the two first-mentioned offences. 

To constitute an offence an act of simple injurious restrainment, or simple ? 
injurious compulsion, it is sufficient if the influence it exerts be, in the first 
place, pernicious ; in the next place, exerted on the person by the medium 

.] Division of Offences. 345 

x Wrongful banishment. 7. Wrongful homicide. 8. Wrongful 
nenacement 1 . 9. Simple mental injuries 2 . 

)f the will : it is not necessary that that part of the person on which it is 
xerted be the part to which it is pernicious : it is not even necessary that 
jit should immediately be pernicious to either of these parts, though to one 
jj>r other of them it must be pernicious in the long-run, if it be pernicious at 

I. An act in which the body, for example, is concerned, may be very 
lisagreeable, and thereby pernicious to him who performs it, though neither 
lisagreeable nor pernicious to his body : for instance, to stand or sit in 
mblic with a label on his back, or under any other circumstances of 

1 It may be observed, that wrongful menacement is included as well in 
imple injurious restrainment as in simple injurious compulsion, except in 
he rare case where the motives by which one man is prevented by another 
rom doing a thing that would have been materially to his advantage, or 
aduced to do a thing that is materially to his prejudice, are of the alluring 

Although, for reasons that have been already given (supra xxxi), no 
omplete catalogue, nor therefore any exhaustive view, of either semi-public 
r self-regarding offences, can be exhibited in this chapter, it may be a 
atisfaction, however, to the reader, to see some sort of list of them, if it 
r ere only for the sake of having examples before his eyes. Such lists can- 
ot any where be placed to more advantage than under the heads of the 
hveral divisions of private extra-regarding offences, to which the semi- 
jiublic and self-regarding offences in question respectively correspond. 
1 oncerning the two latter, however, and the last more particularly, it must 
! ! e understood that all I mean by inserting them here, is to exhibit the 
I dschief, if any, which it is of the nature of them respectively to produce, 
!; ithout deciding upon the question, whether it would be worth while [see 
Si. xiii. Cases unmeet] in every instance, for the sake of combating that 
!i lischief, to introduce the evil of punishment. In the course of this detail, 
i will be observed, that there are several heads of extra-regarding private 
; : fences, to which the correspondent heads, either of semi-public or self- 
sgarding offences, or of both, are wanting. The reasons of these deficien- 
es will probably, in most instances, be evident enough upon the face of 
lem. Lest they should not, they are however specified in the body of the 
|ork. They would take up too much room were they to be inserted 

i: I. SEMI-PUBLIC OFFENCES through calamity. Calamities, by which the 

arsons or properties of men, or both, are liable to be affected, seem to be 

| , follows : i. Pestilence or contagion. 2. Famine, and other kinds of 

! arcity. 3. Mischiefs producible by persons deficient in point of under- 

anding, such as infants, idiots, and maniacs, for want of their being 

! operly taken care of. 4. Mischief producible by the ravages of noxious 

j limals, such as beasts of prey, locusts, &c. &c. 5. Collapsion, or fall of 

! rge masses of solid matter, such as decayed buildings, or rocks, or masses 

I snow. 6. Inundation or submersion. 7. Tempest. 8. Blight. 9. Con- 

ngration. 10. Explosion. In as far as a man may contribute, by any 

iprudent act of his, to give birth to any of the above calamities, such act 

; ay be an offence. In as far as a man may fail to do what is incumbent on 

; m to do towards preventing them, such failure may be an offence. 

II. SEMI-PUBLIC OFFENCES of mere delinquency. A wl 

246 Division of Offences. [CHAP. 

against XXXIV. We come now to offences against reputation merely. 

reputation. These require but few distinctions. In point of reputation there 
is but one way of suffering, which is by losing a portion of the 
good-will of others. Now, in respect of the good-will which 
others bear you, you may be a loser in either of two ways : I . By 
the manner in which you are thought to behave yourself ; and 
2. By the manner in which others behave, or are thought to be 
have, towards you. To cause people to think that you yourself 
have so behaved, as to have been guilty of any of those acts 
which cause a man to possess less than he did before of the 
good- will of the community, is what may be styled defamation.] 
But such is the constitution of human nature, and such the force 
of prejudice, that a man merely by manifesting his own want of 
good-will towards you, though ever so unjust in itself, and ever 
so unlawfully expressed, may in a manner force others to with 
draw from you a part of theirs. When he does this by words, 
or by such actions as have no other effect than in as far as they 

hood may be made to suffer, i. Simple corporal injuries : in other words, 
they may be made to suffer in point of health, by offensive or dangerous 
trades or manufactures : by selling or falsely puffing off unwholesome medi 
cines or provisions : by poisoning or drying up of springs, destroying of 
aqueducts, destroying woods, walls, or other fences against wind and rain: 
by any kinds of artificial scarcity ; or by any other calamities intentionally 
produced. 2. and 3. Simple injurious restrainment, and simple injurious 
compulsion : for instance, by obliging a whole neighbourhood, by dint of 
threatening hand- bills, or threatening discourses, publicly delivered, to join, 
or forbear to join, in illuminations, acclamations, outcries, invectives, sub 
scriptions, undertakings, processions, of any other mode of expressing j oy or 
grief, displeasure or approbation; or, in short, in any other courseof conduct 
whatsoever. 4. and 5. Confinement and banishment : by the spoiling of 
roads, bridges, or ferry-boats: by destroying or unwarrantably pre-occupy- 
ing public carriages, or houses of accommodation. 6. By menacement : as 
by incendiary letters, and tumultuous assemblies : by newspapers or hand 
bills, denouncing vengeance against persons of particular denominations : 
for example, against Jews, Catholics, Protestants, Scotchmen, Gascons, 
Catalonians, &c. 7. Simple mental injuries : as by distressful, terrifying, 
obscene, or irreligious exhibitions ; such as exposure of sores by beggars, 
exposure of dead bodies, exhibitions or reports of counterfeit witchcraftsor ! 
apparitions, exhibition of obscene or blasphemous prints : obscene or blas 
phemous discourses held in public : spreading false news of public defeats in 
battle, or of other misfortunes. 

III. Self-regarding offences against person, i. Fasting. Abstinence 
from venery, self-flagellation, self- mutilation, and other self-denying and 
self- tormenting practices. 2. Gluttony, drunkenness, excessive venery, and 
other species of intemperance. 3. Suicide. 

xvi.] Division of Offences. 247 

stand in the place of words, the offence may be styled vilified- 

- tion. When it is done by such actions as, besides their having 
!; this effect, are injuries to the person, the offence may be styled 

a personal insult: if it has got the length of reaching the body, a 
: corporal insult : if it stopped short before it reached that length, 
8 it may be styled insulting menacement. And thus we have two 
. genera or kinds of offences against reputation merely ; to wit, 
SI. Defamation: and, 2. Vilification, or Revilement 1 . As to 
. corporal insults, and insulting menacement, they belong to the 

- compound title of offences against person and reputation both 
; together. 

XXXV. If the property of one man suffers by the delinquency Offences 
[;of another, such property either was in trust with the offender, property. 
iior it was not : if it was in trust, the offence is a breach of trust, 
*and of whatever nature it may be in other respects, may. be 
styled dissipation in breach of trust, or dissipation of property in 
ttrust. This is a particular case : the opposite one is the more 
- 1 common : in such case the several ways in which property may, 
by possibility, become the object of an offence, may be thus con 
ceived. Offences against property, of whatever kind it be, may 

- be distinguished, as hath been already intimated 2 , into such as 
jjconcern the legal possession of it, or right to it, and such as con- 
Icern only the enjoyment of it, or, what is the same thing, the 
feercise of that right. Under the former of these heads come, 
las hath been already intimated 3 , the several offences of wrongful 
\non-investment, wrongful interception, wrongful divestment, 

. usurpation, and wrongful attribution. When in the commission 
|}f any of these offences a falsehood has served as an instrument, 
ind that, as it is commonly called, a wilful, or as it might more 
properly be termed, an advised* one, the epithet fraudulent may 
oe prefixed to the name of the offence, or substituted in the 
"oom of the word wrongful. The circumstance of fraudulency 
:hen may serve to characterise a particular species, comprisable 

1 I. SEMI-PUBLIC OFFENCES, i. Calumniation and vilification of par 
ticular denominations of persons ; such as Jews, Catholics, &c. 

II. SELF-REGARDING OFFENCES. I. Incontinence in females. 2. Incest. 

8 Supra xxvii. 3 Ib. * See ch. ix. [Consciousness] ii. 

348 Division of Offences. [CHAP. 

under each of those generic heads : in like manner the circum 
stance of force, of which more a little farther on, may serve to 
characterise another. With respect to wrongful interception in 
particular, the investitive event by which the title to the thing 
in question should have accrued to you, and for want of which 
such title is, through the delinquency of the offender, as it were, 
intercepted, is either an act of his own, expressing it as his will, 
that you should be considered by the law as the person who is 
legally in possession of it, or it is any other event at large : in the 
former case, if the thing, of which you should have been put into 
possession, is a sum of money to a certain amount, the offence is 
that which has received the name of insolvency; which branch 
of delinquency, in consideration of the importance and extent 
of it, may be treated on the footing of a distinct genus of itself l . 

Payment, what. * The light in which the offence of insolvency is here exhibited, may 
perhaps at first consideration be apt to appear not only novel but im 
proper. It may naturally enough appear, that when a man owes you a 
sum of money, for instance, the right to the money is yours already, 
and that what he withholds from you by not paying you, is not the legal 
title to it, possession of it, or power over it, but the physical possession 
of it, or power over it, only. But upon a more accurate examination 
this will be found not to be the case. What is meant by payment, is 
always an act of investitive power, as above explained ; an expression of 
an act of the will, and not a physical act : it is an act exercised with 
relation indeed to the thing said to be paid, but not in a physical sense 
exercised upon it. A man who owes you ten pounds, takes up a handful 
of silver to that amount, and lays it down on a table at which you are 
sitting. If then by words, or gestures, or any means whatever, addressing 
himself to you, he intimates it to be his will that you should take up the 
money, and do with it as you please, he is said to have paid you : but if 
the case was, that he laid it down not for that purpose, but for some other, 
for instance, to count it and examine it, meaning to take it up again him 
self, or leave it for somebody else, he has not paid you : yet the physical 
acts, exercised upon the pieces of money in question, are in both cases the 
same. Till he does express a will to that purport, what you have is not, 
properly speaking, the legal possession of the money, or a right to the 
money, but only a right to have him, or in his default perhaps a minister of 
justice, compelled to render you that sort of service, by the rendering of 
which he is said to pay you : that is, to express such will as above- 
mentioned, with regard to some corporeal article, or other of a certain 
species, and of value equal to the amount of what he owes you : or, in other 
words, to exercise in your favour an act of investitive power with relation 
to some such article. 

True it is, that in certain cases a man may perhaps not be deemed, 
according to common acceptation, to have paid you, without rendering you i 
a further set of services, and those of another sort : a set of services, which i 

xvi.] Division of Offences. 349 

Next, with regard to such of the offences against property 
as concern only the enjoyment of the object in question. This 
object must be either a service, or set of services 1 , which should 
have been rendered by some person, or else an article belonging 
to the class of things. In the former case, the offence may be 
styled wrongful withholding of services 2 . In the latter case it may 
admit of farther modifications, which may be thus conceived : 
When any object which you have had the physical occupation or 
enjoyment of, ceases, in any degree, in consequence of the act of 
another man, and without any change made in so much of that 
power as depends upon the intrinsic physical condition of your 
person, to be subject to that power ; this cessation is either 
owing to change in the intrinsic condition of the thing itself, 
or in its exterior situation with respect to you, that is, to its 
being situated out of your reach. In the former case, the nature 
of the change is either such as to put it out of your power to 
! make any use of it at all, in which case the thing is said to be 
5, and the offence whereby it is so treated may be termed 

are rendered by the exercising of certain acts of a physical nature upon the 
very thing with which he is said to pay you : to wit, by transferring the 
thing to a certain place where you may be sure to find it, and where it may 
; be convenient for you to receive it. But these services, although the 
obligation of rendering them should be annexed by law to the obligation of 
rendering those other services in the performance of which the operation of 
payment properly consists, are plainly acts of a distinct nature : nor are they 
essential to the operation : by themselves they do not constitute it, and it 
may be performed without them. It must be performed without them 
wherever the thing to be transferred happens to be already as much within 
the reach, physically speaking, of the creditor, as by any act of the debtor 
it can be made to be. 

This matter would have appeared in a clearer light had it been prac 
ticable to enter here into a full examination of the nature of property, and 
the several modifications of which it is susceptible : but every thing cannot 
be done at once. 

1 Supra xxvi. 

2 Under wrongful withholding of services is included breach of contract : 
for the obligation to render services may be grounded either on contractor 

| upon other titles : in other words, the event of a man s engaging in a 

| contract is one out of many other iiivestitive events from which the right of 

receiving them may take its commencement. See ch. xvii. [Limits], iy. 

Were the word services to be taken in its utmost latitude (negative in 
cluded as well as positive) this one head would cover the whole law. To 
this place then are to be referred such services only, the withholding of 
which does not coincide with any of the other offences, for which separate 
denominations have been provided. 

250 Division of Offences. [CHAP. 

wrongful destruction : or such only as to render the uses it is 
capable of being put to of less value than before, in which case 
it is said to be damaged, or to have sustained damage, and the 
offence may be termed wrongful endamagement. Moreover, in 
as far as the value which a thing is of to you is considered as 
being liable to be in some degree impaired, by any act on the 
part of any other person exercised upon that thing, although on 
a given occasion no perceptible damage should ensue, the exer 
cise of any such act is commonly treated on the footing of an 
offence, which may be termed wrongful using or occupation. 

If the cause of the thing s failing in its capacity of being of 
use to you, lies in the exterior situation of it with relation to 
you, the offence may be styled wrongful detainment 1 . Wrongful 
detainment, or detention, during any given period of time, may 
either be accompanied with the intention of detaining the thing 
for ever (that is for an indefinite time), or not : if it be, and if 
it be accompanied at the same time with the intention of not 
being amenable to law for what is done, it seems to answer to 
the idea commonly annexed to the word embezzlement, an offence 
which is commonly accompanied with breach of trust 2 . In the 
case of wrongful occupation, the physical faculty of occupying 
mayhavebeen obtained with or withoutthe assistance or consent 
of the proprietor, or other person appearing to have a right to 

1 In the English law, detinue and detainer : detinue applied chiefly to 
movables ; detainer, to immovables. Under detinue and detainer cases 
are also comprised, in which the offence consists in forbearing to transfer 
the legal possession of the thing : such cases may be considered as coming 
under the head of wrongful non-investment. The distinction between 
mere physical possession and legal possession, where the latter is short 
lived and defeasible, seems scarcely hitherto to have been attended to. In 
a multitude of instances they are confounded under the same expressions. 
The cause is, that probably under all laws, and frequently for very good 
reasons, the legal possession, with whatever certainty defeasible upon the 
event of a trial, is, down to the time of that event, in many cases annexed 
to the appearance of the physical. 

2 In attempting to exhibit the import belonging to this and other names 
of offences in common use, I must be understood to speak all along with 
the utmost diffidence. The truth is, the import given to them is commonly 
neither determinate nor uniform : so that in the nature of things, no defi 
nition that can be given of them by a private person can be altogether an 
exact one. To fix the sense of them belongs only to the legislator. 

xvi.] Division of Offences. 251 

afford such assistance or consent. If without such assistance or 
consent, and the occupation be accompanied with the intention 
of detaining the thing for ever, together with the intention of 
not being amenable to law for what is done, the offence seems to 
answer to the idea commonly annexed to the word theft or stealing . 
If in the same circumstances a force is put upon the body of any 
person who uses, or appears to be disposed to use, any endeavours 
to prevent the act, this seems to be one of the cases in which 
the offence is generally understood to come under the name of 

If the physical faculty in question was obtained with the as 
sistance or consent of a proprietor or other person above spoken 
of, and still the occupation of the thing is an offence, it may have 
been either because the assistance or consent was not fairly or 
because it was not freely obtained. If not fairly obtained, it 
was obtained by falsehood, which, if advised, is in such a case 
termed fraud : and the offence, if accompanied with the inten 
tion of not being amenable to law, may be termed fraudulent 
obtainment or defraudment 1 . If not freely obtained, it was ob 
tained by force : to wit, either by a force put upon the body, 
which has been already mentioned, or by a force put upon the 
mind. If by a force put upon the mind, or in other words, by 
the application of coercive motives 2 , it must be by producing 
the apprehension of some evil : which evil, if the act is an offence, 
must be some evil to which on the occasion in question the one 
person has no right to expose the other. This is one case in 
which, if the offence be accompanied with the intention of de 
taining the thing for ever, whether it be or be not accompanied 
with the intention of not being amenable to law, it seems to 
agree with the idea of what is commonly meant by extortion. 
Now the part a man takes in exposing another to the evil in 

1 The remaining cases come under the head of usurpation, or wrongful 
investment of property. The distinction seems hardly hitherto to have 
been attended to : it turns like another, mentioned above, upon the dis 
tinction between legal possession and physical. The same observation 
may be applied to the case of extortion hereafter following. 

a Vide supra, xxvii. 

Division of Offences. [CHAP. 

question, must be either a positive or a negative part. In the 
former case, again, the evil must either be present or distant. 
In the case then where the assistance or consent is obtained by 
a force put upon the body, or where, if by a force put upon the 
mind, the part taken in the exposing a man to the apprehension 
of the evil is positive, the evil present, and the object of it his 
person, and if at any rate the extortion, thus applied, be accom 
panied with the intention of not being amenable to law, it seems 
to agree with the remaining case of what goes under the name 
of robbery. 

As to dissipation in breach of trust, this, when productive of 
a pecuniary profit to the trustee, seems to be one species of what 
is commonly meant by peculation. Another, and the only re 
maining one, seems to consist in acts of occupation exercised by 
the trustee upon the things which are the objects of the fiduciary 
property, for his own benefit, and to the damage of the benefi 
ciary. As to robbery, this offence, by the manner in which the 
assistance orconsentisobtained,becomes an offence against pro 
perty and person at the same time. Dissipation in breach of trust, 
and peculation, may perhaps be more commodiously treated 
of under the head of offences against trust 1 . After these excep 
tions, we have thirteen genera or principal kinds of offences 
against property, which, when ranged in the order most commo 
dious for examination, may stand as follows, viz. I. Wrongful 
non-investment of property. 2. Wrongful interception of pro 
perty. 3. Wrongful divestment of property. 4. Usurpation of 
property. 5. Wrongful investment of property. 6. Wrongful 
withholding of services. 7. Wrongful destruction or endamage- 
ment. 8. Wrongful occupation. 9. Wrongful detainment. 
10. Embezzlement. II. Theft. 12. Defraudment. 13. Ex 
tortion 2 . 

1 Usury, which, if it must be an offence, is an offence committed with 
consent, that is, with the consent of the party supposed to be injured, can 
not merit a place in the catalogue of offences, unless the consent were 
either unfairly obtained or unfreely : in the first case, it coincides with 
defraudment ; in the other, with extortion. 

2 I. SEMI-PUBLIC OFFENCES, i . Wrongful divestment, interception, usur 
pation, &c. of valuables, which are the property of a corporate body ; or" 

xvi.] Division of Offences. 253 

We proceed now to consider offences which are complex in 
their effects. Eegularly, indeed, we should come to offences 
against condition ; but it will be more convenient to speak 
first of offences by which a man s interest is affected in two 
of the preceding points at once. 

XXXVI. First, then, with regard to offences which affect Offences 
person and reputation together. When any man, by a mode of person and 
treatment which affects the person, injures the reputation of re 
another, his end and purpose must have been either his own im 
mediate pleasure, or that sort of reflected pleasure, which in cer 
tain circumstances may be reaped from the suffering of another. 
Now the only immediate pleasure worth regarding, which any 
one can reap from the person of another, and which at the same 
time is capable of affecting the reputation of the latter, is the 
pleasure of the sexual appetite 1 . This pleasure, then, if reaped 
at all, must have been reaped either against the consent of the 
party, or with consent. If with consent, the consent must have 
been obtained either freely and fairly both, or freely but not 
fairly, or else not even freely ; in which case the fairness is out 
of the question. If the consent be altogether wanting, the offence 
is called rape : if not fairly obtained, seduction simply : if not 
freely, it may be called forcible seduction. In any case, either 
the offence has gone the length of consummation, or has stopped 
short of that period ; if it has gone that length, it takes one or 
other of the names just mentioned : if not, it may be included 
alike in all cases under the denomination of a simple lascivious 
injury. Lastly, to take the case where a man injuring you in 
your reputation, by proceedings that regard your person, does it 

which are in the indiscriminate occupation of a neighbourhood ; such as 
parish churches, altars, relics, and other articles appropriated to the pur 
poses of religion : or things which are in the indiscriminate occupation of 
the public at large ; such as mile-stones, market-houses, exchanges, publ ; c 
gardens, and cathedrals. 2. Setting-on foot what have been called bubbles, 
or fraudulent partnership, or gaining adventures ; propagating false news, 
to raise~or"smirthe value of stocks, or of any other denomination of 

~TTT^ELF-REGARDING OFFENCES, i. Idleness. 2. Gaming. 3. Other 
jpecies of prodigality. 
1 See ch. v. [Pleasures and Pains]. 

354 Division of Offences. [CHAP. 

for the sake of that sort of pleasure which will sometimes result 
from the contemplation of another s pain. Under these circum 
stances either the offence has actually gone the length of a cor 
poral injury, or it has rested in menacement : in the first case it 
may be styled a corporal insult; in the other, it may come under 
the name of insulting menacement. And thus we have six genera, 
or kind of offences, against person and reputation together; 
which, when ranged in the order most commodious for con 
sideration, will stand thus : i. Corporal insults. 2. Insulting 
menacement. 3. Seduction. 4. Rape. 5. Forcible seduction. 
6. Simple lascivious injuries 1 . 

against* XXXVII. Secondly, with respect to those which affect person 
P ro S ert and an( ^ P r P er ty together. That a force put upon the person of a 
man may be among the means by which the title to property 
may be unlawfully taken away or acquired, has been already 
stated 2 . A force of this sort then is a circumstance which may 
accompany the offences of wrongful interception, wrongful di 
vestment, usurpation, and wrongful investment. But in these 
cases the intervention of this circumstance does not happen to 
have given any new denomination to the offence 3 . In all or any 
of these cases, however, by prefixing the epithet forcible, we may 
have so many names of offences, which may either be considered 
as constituting so many species of the genera belonging to the 
division of offences against property, or as so many genera be 
longing to the division now before us. Among the offences that 
concern the enjoyment of the thing, the case is the same with 
wrongful destruction and wrongful endamagement; as also with 
wrongful occupation and wrongful detainment . As to the off ence 
of wrongful occupation, it is only in the case where the thing 
occupied belongs to the class of immovables, that, when accom 
panied by the kind of force in question, has obtained a particular 


II. SELF-REGARDING OFFENCES, i. Sacrifice of virginity. 2. Inde 
cencies not public. 

3 Supra. 

3 In the technical language of the English law, property so acquired is 
said to be acquired by duress. 

xvi.] Division of Offences. 255 

name which is in common use : in this case it is called forcible 
entry : forcible detainment, as applied also to immovables, but 
only to immovables, has obtained, among lawyers at least, the 
name of forcible detainer \ And thus we may distinguish ten 
genera, or kinds of offences, against person and property together, 
| which, omitting for conciseness sake the epithet wrongful, will 
stand thus : I. Forcible interception of property. 2. Forcible 
divestment of property. 3. Forcible usurpation. 4. Forcible 
investment. 5. Forcible destruction or endamagement. 6. For 
cible occupation of movables. 7. Forcible entry. 8. Forcible 
detainment of movables. 9. Forcible detainment of immov 
ables. 10. Robbery 2 . 

XXXVIII. We come now to offences against condition. A offences 
man s condition or station in life is constituted by the legal condition. 
relation he bears to the persons who are about him ; that is, as domestic 18 
we have already had occasion to show 3 , by duties, which, by or 
being imposed on one side, give birth to rights or powers on the 

other. These relations, it is evident, may be almost infinitely 
diversified. Some means, however, may be found of circum 
scribing the field within which the varieties of them are dis 
played. In the first place, they must either be such as are 
capable of displaying themselves within the circle of a private 
! family, or such as require a larger space. The conditions con 
stituted by the former sort of relations may be styled domestic : 
those constituted by the latter, civil. 

XXXIX. As to domestic conditions, the legal relations by Domestic 
which they are constituted may be distinguished into I. Such as grounded on 

1 Applied to movables, the circumstance of force has never, at least by 
the technical part of the language, been taken into account : no such com 
bination of terms as forcible occupation is in current use. The word detinue 
.s applied to movables only : and (in the language of the law) the word 

J "orcible has never been combined with it. The word applied to immoy- 
ibles is detainer : this is combined with the word forcible : and what is 
singular, it is scarcely in use without that word. It was impossible to 
iteer altogether clear of this technical nomenclature, on account of the 
nfluence which it has on the body of the language. 

2 I. SEMI-PUBLIC OFFENCES, i. Incendiarism. 2. Criminal inundation. 

I 8 Supra, xxv. note. 

Division of Offences. [CHAP. 

reiSJ- are su P eradded to relations purely natural : and 2. Such as, 
ships. without any such natural basis, subsist purely by institution. 
By relations purely natural, I mean those which may be said to 
subsist between certain persons in virtue of the concern which 
they themselves, or certain other persons, have had in the process 
which is necessary to the continuance of the species. These 
relations may be distinguished, in the first place, into contiguous 
and uncontiguous. The uncontiguous subsist through the inter 
vention of such as are contiguous. The contiguous may be dis 
tinguished, in the first place, into connubial, and post-connubial *. 
Those which may be termed connubial are two : I. That which 
the male bears towards the female : 2. That which the female 
bears to the male 2 . The post-connubial are either productive or 
derivative. The productive is that which the male and female 
above-mentioned bear each of them towards the children who are 
the immediate fruit of their union; this is termed the relation of 
parentality. Now as the parents must be, so the children may 
be, of different sexes. Accordingly the relation of parentality 
may be distinguished into four species : I. That which a father 
bears to his son : this is termed paternity. 2. That which a 

* By the terms connubial and post-connubial, all I mean at present to 
bring to view is, the mere physical union, apart from the ceremonies and 
legal engagements that will afterwards be considered as accompanying it. 
t^foSftlrom * ? he 7 a ue ancl undetermined nature of the fictitious entity, called a 
every two relation, is, on occasions like the present, apt to be productive of a good 
deal of confusion. A relation is either said to be borne by one of the 
objects which are parties to it, to the other, or to subsist between them. 
The latter mode of phraseology is, perhaps, rather the more common. 
In such case the idea seems to be, that from the consideration of the two 
objects there results but one relation, which belongs as it were in common 
to them both. In some cases, this perhaps may answer the purpose very 
well : it will not, however, in the present case. For the present purpose it 
will be necessary we should conceive two relations as resulting from the 
two objects, and borne, since such is the phrase, by the one of them to or 
towards the other : one relation borne by the first object to the second : 
another relation borne by the second object to the first. This is necessary 
on two accounts : i. Because for the relations themselves there are in 
many instances separate names : for example, the relations of guardianship 
and wardship : in which case, the speaking of them as if they were but 
one, may be productive of much confusion. 2. Because the two different 
relationships give birth to so many conditions : which conditions are so far 
different, that what is predicated and will hold good of the one, will, in 
various particulars, as we shall see, not hold good of the other. 

xvi.] Division of Offences. 357 

father bears to his daughter : this also is termed paternity. 
3. That which a mother bears to her son : this is called mater 
nity. 4. That which a mother bears to her daughter : this also 
is termed maternity. Uncontiguous natural relations may be 
distinguished into immediate and remote. Such as are imme 
diate, are what one person bears to another in consequence of 
their bearing each of them one simple relation to some third 
person. Thus the paternal grandfather is related to the paternal 
grandson by means of the two different relations, of different 
kinds, which together they bear to the father : the brother on 
i the father s side, to the brother, by means of the two relations of 

I the same kind, which together they bear to the father. In the 
j same manner we might proceed to find places in the system for 
the infinitely diversified relations which result from the com 
binations that may be formed by mixing together the several 

jjsorts of relationships by ascent, relationships by descent, col- 
mteral relationships, and relationships by affinity : which 
fatter, when the union between the two parties through whom 
Ifche affinity takes place is sanctioned by matrimonial solemnities, 
lire termed relationships by marriage. But this, as it would be 

I 1 most intricate and tedious task, so happily is it, for the pre- 
Hent purpose, an unnecessary one. The only natural relations 
|;o which it will be necessary to pay any particular attention, 
| ire those which, when sanctioned by law, give birth to the con- 

litions of husband and wife, the two relations comprised under 
he head of parentality, and the corresponding relations com- 
rised under the head of filiality or filiation. 

What then are the relations of a legal kind which can be 
uperinduced upon the above-mentioned natural relations? They 
lust be such as it is the nature of law to give birth to and 
stablish. But the relations which subsist purely by institution 
xhaust, as we shall see, the whole stock of relationships which 
} is in the nature of the law to give birth to and establish, 
he relations then which can be superinduced upon those which 
re purely natural, cannot be in themselves any other than what 
re of the number of those which subsist purely by institution : 


358 .Division of Offences. [CHAP. 

so that all the difference there can be between a legal relation 
of the one sort, and a legal relation of the other sort, is, that 
in the former case the circumstance which gave birth to 
the natural relation serves as a mark to indicate where the 
legal relation is to fix : in the latter case, the place where 
the legal relation is to attach is determined not by that cir 
cumstance but by some other. From these considerations it 
will appear manifestly enough, that for treating of the several 
sorts of conditions, as well natural as purely conventional, in 
the most commodious order, it will be necessary to give the 
precedence to the latter. Proceeding throughout upon the same 
principle, we shall all along give the priority,- not to those which 
are first by nature, but to those which are most simple in point 
of description. There is no other way of avoiding perpetual 
anticipations and repetitions. 

Domestic XL. We come now to consider the domestic or family rela- 
whichare tions, which are purely of legal institution. It is to these in 
legal effect, that both kinds of domestic conditions, considered as the 

work of law, are indebted for their origin. When the law, no i 
matter for what purpose, takes upon itself to operate, in a matter I 
in which it has not operated before, it can only be by imposing j 
obligation 1 . Now when a legal obligation is imposed on any 
man, there are but two ways in which it can in the first instance I 
be enforced. The one is by giving the power of enforcing it to ; 
the party in whose favour it is imposed : the other is by reserving < 
that power to certain third persons, who, in virtue of their pos- j 
sessing it, are styled ministers of justice. In the first case, the 
party favoured is said to possess not only a right as against the ; 
party obliged, but also a power over him : in the second case, a 
right only, uncorroborated by power. In the first case, the party j 
favoured maybe styled a superior, and as they are bothmembers 
of the same family, a domestic superior, with reference to thej 
party obliged : who, in the same case, may be styled a domestic 
inferior, with reference to the party favoured. Now in point 
of possibility, it is evident, that domestic conditions, or a kind 
1 See ch. xvii. [Limits], iii. 

xvi.] Division of Offences. 259 

of fictitious possession analogous to domestic conditions, might 
have been looked upon as constituted, as well by rights alone, 
without powers on either side, as by powers. But in point of 
utility 1 it does not seem expedient : and in point of fact, pro- 

1 Two persons, who by any means stand engaged to live together, can 
never live together long, but one of them will choose that some act or other 
should be done which the other will choose should not be done. When 
this is the case, how is the competition to be decided ? Laying aside gene 
rosity and good- breeding, which are the tardy and uncertain fruits of long- 
established laws, it is evident that there can be no certain means of deciding 
it but physical power : which indeed is the very means by which family as 
well as other competitions must have been decided, long before any such 
office as that of legislator had existence. This then being the order of 
things which the legislator finds established by nature, how should he do 
better than to acquiesce in it? The persons who by the influence of causes 
that prevail every where, stand engaged to live together, are, i . Parent and 
child, during the infancy of the latter : 2. Man and wife : 3. Children of 
the same parents. Parent and child, by necessity : since, if the child did 
not live with the parent (or with somebody standing in the place of the 
parent) it could not live at all : husband and wife, by a choice approaching 
to necessity : children of the same parents, by the necessity of their living 
each of them with the parents. As between parent and child, the necessity 
there is of a power on the part of the parent for the preservation of the 
child supersedes all farther reasoning. As between man and wife, that 
necessity does not subsist. The only reason that applies to this case is the 
necessity of putting an end to competition. The man would have the meat 
roasted, the woman boiled: shall they both fast till the judge comes in to 
dress it for them? The woman would have the child dressed in green ; the 
man, in blue : shall the child be naked till the judge comes in to clothe it ? 
This affords a reason for giving a power to one or other of the parties : but 
it affords none for giving the power to the one rather than to the other. 
How then shall the legislator determine ? Supposing it equally easy to 
give it to either, let him look ever so long for a reason why he should give 
it to the one rather than to the other, and he may look in vain. But how 
does the matter stand already ? for there were men and wives (or, what 
comes to the same thing, male and female living together as man and wife) 
before there were legislators. Looking round him then, he finds almost 
every where the male the stronger of the two ; and therefore possessing 
already, by purely physical means, that power which he is thinking of 
bestowing on one of them by means of law. How then can he do so well 
as by placing the legal power in the same hands which are beyond compari 
son the more likely to be in possession of the physical ? in this way, few 
transgressions, and few calls for punishment : in the other way, perpetual 
transgressions, and perpetual calls for punishment. Solon is said to have 
transferred the same idea to the distribution of state powers. Here then 
was generalization: here was the work of genius. But in the disposal of 
domestic power, every legislator, without any effort of genius, has been a 
Solon. So much for reasons 1 : add to which, in point of motives 2 , that legis- 

Social motives : sympathy for the public : love of reputation, &c. 
a Self-regarding motives : or social motives, which are social in a less extent : sympathy 
for persons of a particular description : persons of the same sex. 

S 2 

260 Division of Offences. [CHAP. 

bably owing to the invariable perception which men must have 
had of the inexpediency, no such conditions seem ever to have 
been constituted by such feeble bands. Of the legal relation 
ships then, which are capable of being made to subsist within 
the circle of a family, there remain those only in which the 
obligation is enforced by power. Now then, wherever any such 
power is conferred, the end or purpose for which it was con 
ferred (unless the legislator can be supposed to act without a 
motive) must have been the producing of a b enefit to somebody : 
in other words, it must have been conferred for the sake of some 
body. The person then, for whose sake it is conferred, must 
eitherbe one of the two parties just mentioned, or a third party : 
if one of these two, it must be either the superior or the inferior. 
If the superior, such superior is commonly called a master ; and 
the inferior is termed his servant : and the power may be termed 
a beneficial one. If it be for the sake of the inferior that the 
power is established, the superior is termed a guardian ; and 
the inferior his ward: and the power, being thereby coupled with 
a trust, may be termed & fiduciary one. If for the sake of a 
third party, the superior may be termed a superintendent ; and 
the inferior his subordinate. This third party will either be an 
assignable individual or set of individuals, or a set of unassign 
able individuals. In this latter case the trust is either a public 
or a semi-public one : and the condition which it constitutes is 
not of the domestic, but of the civil kind. In the former case, 
this third party or principal, as he may be termed, either has 
a beneficial power over the superintendent, or he has not : if he 
has, the superintendent is his servant, and consequently so also 
is the subordinate : if not, the superintendent is the master of 
the subordinate ; and all the advantage which the principal has 
over his superintendent, it that of possessing a set of rights, un 
corroborated by power ; and therefore, as we have seen 1 , not fit 

lators seem all to have been of the male sex, down to the days of Catherine. 
I speak here of those who frame laws, not of those who touch them with 
a sceptre. 

1 Supra, note, page 259. 

:vi.] Division of Offences. 261 

to constitute a condition of the domestic kind. But be the con 
dition what it may which is constituted by these rights, of what 
nature can the obligations be, to which the superintendent is 
capable of being subjected by means of them ? They are neither 
more nor less than those which a man is capable of being sub- 
ected to by powers. It follows, therefore, that the functions of 

principal and his superintendent coincide with those of a 
master and his servant; and consequently that the offences rela- 
ive to the two former conditions will coincide with the offences 
relative to the two latter. 

XLI. Offences to which the condition of a master, like any Offences 

, -. touching the 

>ther kind of condition, is exposed, may, as hath been already condition of 
ntimated 1 , be distinguished into such as concern the existence 
f the condition itself, and such as concern the performance of 
;he functions of it, while subsisting. First then, with regard to 
mch as affect its existence. It is obvious enough that the ser 
vices of one man may be a benefit to another : the condition of 
a master may therefore be a beneficial one. It stands exposed, 
therefore, to the offences of wrongful non-investment, wrongful 
interception, usurpation, wrongful investment, and wrongful di 
vestment. But how should it stand exposed to the offences of 
wrongful abdication, wrongful detrectation, and wrongful imposi 
tion ? Certainly it cannot of itself ; for services, when a man 
las the power of exacting them or not, as he thinks fit, can never 
3e a burthen. But if to the powers, by which the condition of 
a master is constituted, the law thinks fit to annex any obliga 
tion on the part of the master ; for instance, that of affording 
maintenance, or giving wages, to the servant, or paying money 
io anybody else ; it is evident that in virtue of such obligation 
the condition may become a burthen. In this case, however, 
the condition possessed by the master will not, properly speaking, 
be the pure and simple condition of a master : it will be a kind 
}f complex object, resolvable into the beneficial condition of a 
naster, and the burthensome obligation which is annexed to it. 
Still however, if the nature of the obligation lies within a narrow 
1 Vide supra, xxvii. 

Division of Offences. [CHAP. 

compass, and does not, in the manner of that which constitutes 
a trust, interfere with the exercise of those powers by which the 
condition of the superior is constituted, the latter, notwithstand 
ing this foreign mixture, will still retain thename of mastership 1 . 
In this case therefore, but not otherwise, the condition of a 
master may stand exposed to the offences of wrongful abdication, 
wrongful detrectation, and wrongful imposition. Next as to the 
behaviour of persons with reference to this condition, while con 
sidered as subsisting. In virtue of its being a benefit, it is ex 
posed to disturbance. This disturbance will either be the offence 
of a stranger, or the offence of the servant himself. Where it is 
the offence of a stranger, and is committed by taking the person 
of the servant, in circumstances in which the taking of an object 
belonging to the class of things would be an act of theft, or 
(what is scarcely worth distinguishing from theft) an act of em 
bezzlement : it may be termed servant-stealing. Where it is the 
offence of the servant himself, it is styled breach of duty. Now 
the most flagrant species of breach of duty, and that which in 
cludes indeed every other, is that which consists in the servant s 
withdrawing himself from the place in which the duty should be 
performed. This species of breach of duty is termed elopement. 
Again, in virtue of the power belonging to this condition, it is 
liable, on the part of the master to abuse. But this power is 
not coupled with a trust. The condition of a master is there 
fore not exposed to any offence which is analogous to breach of 
trust. Lastly, on account of its being exposed to abuse, it may 
be conceived to stand, in point of possibility, exposed to bribery. 
But considering how few, and how insignificant, the persons are 
who are liable to be subject to the power here in question, this 
is an offence which, on account of the want of temptation, there 
will seldom be any example of in practice. We may therefore 

1 In most civilized nations there is a sort of domestic condition, in which 
the superior is termed a master, while the inferior is termed sometimes 
indeed a servant, but more particularly and more frequently an apprentice. 
In this case, though the superior is, in point of usage, known by no other 
name than that of a master, the relationship is in point of fact a mixed one, 
compounded of that of master and that of guardian. 

xvi.] Division of Offences. 263 

reckon thirteen sorts of offences to which the condition of a 
master is exposed ; viz. i. Wrongful non-investment of master 
ship. 2. Wrongful interception of mastership. 3. Wrongful 
divestment of mastership. ^Usurpation of mastership. 5. Wrong 
ful investment of mastership. 6. Wrongful abdication of master 
ship. 7. Wrongful detrectation of mastership. 8. Wrongful 
imposition of mastership. 9. Abuse of mastership. 10. Dis 
turbance of mastership, n. Breach of duty in servants. 
12. Elopement of servants. 13. Servant-stealing. 

XLII. As to the power by which the condition of a master is Various 
constituted, this may be either limited or unlimited. When it servitude. 
is altogether unlimited, the condition of the servant is styled 
pure slavery. But as the rules of language are as far as can 
be conceived from being steady on this head, the term slavery is 
commonly made use of wherever the limitations prescribed to 
the power of the master are looked upon as inconsiderable. 
Whenever any such limitation is prescribed, a kind of fictitious 
entityis thereby created, and, in quality of an incorporeal object 
of possession, is bestowed upon the servant : this object is of the 
class of those which are called rights : and in the present case is 
termed, in a more particular manner, a liberty ; and sometimes a 
privilege, an immunity, or an exemption. Now those limitations 
on the one hand, and these liberties on the other, may, it is evi- 
! dent, be as various as the acts (positive or negative) which the 
i master may or may not have the power of obliging the servant 
ito submit to or to perform. Correspondent then to the infini- 
|tude of these liberties, is the infinitude of the modifications 
; which the condition of mastership (or, as it is more common to 
.say in such a case, that of servitude) admits of. These modifi 
cations, it is evident, may, in different countries, be infinitely 
diversified. Indifferent countries, therefore, the offences charac 
terised by the above names will, if specifically considered, admit 
Df very different descriptions. If there be a spot upon the earth 
so wretched as to exhibit the spectacle of pure and absolutely 
unlimited slavery, on that spot there will be no such thing as 
my abuse of mastership ; which means neither more nor less 

264 Division of Offences. [CHAP. 

than that no abuse of mastership will there be treated on the foot 
ing of an offence. As to the question, Whether any, and what, 
modes of servitude ought to be established or kept on foot ? this 
is a question, the solution of which belongs to the civil branch of 
the art of legislation. 

XLIII. Next, with regard to the offences that may concern 
a 8 1 lrvant. 0f tlle condition of a servant. It might seem at first sight, that a 
condition of this kind could not have a spark of benefit belong 
ing to it : that it could not be attended with any other con 
sequences than such as rendered it a mere burthen. But a 
burthen itself may be a benefit, in comparison of a greater bur 
then. Conceive a man s situation then to be such, that he must, 
at any rate, be in a state of pure slavery. Still may it be mate 
rial to him, and highly material, who the person is whom he has 
for his master. A state of slavery then, under one master, may 
be a beneficial state to him, in comparison with a state of slavery 
under another master. The condition of a servant then is ex 
posed to the several offences to which a condition, in virtue of 
its being a beneficial one, is exposed 1 . More than this, where 
the power of the master is limited, and the limitations annexed 
to it, and thence the liberties of the servant, are considerable, 
the servitude may even be positively eligible. For amongst those 
limitations may be such as are sufficient to enable the servant 
to possess property of his own : being capable then of possessing 
property of his own, he may be capable of receiving it from his 
master : in short, he may receive wages, or other emoluments, 
from his master ; and the benefit resulting from these wages 
may be so considerable as to outweigh the burthen of the servi- 

1 It may seem at first, that a person who is in the condition of a slave, 
could not have it in his power to engage in such course of proceeding as 
would be necessary, in order to give him an apparent title to be reckoned 
among the slaves of another master. But though a slave in point of right, 
it may happen that he has eloped for instance, and is not a slave in point 
of fact : or, suppose him a slave in point of fact, and ever so vigilantly 
guarded, still a person connected with him by the ties of sympathy, might 
do that for him which, though willing and assenting, he might not be able 
to do for himself : might forge a deed of donation, for example, from the 
one master to the other. 

vi.] Division of Offences. 2,6$ 

ude, and, by that means, render that condition more beneficial 
pon the whole, and more eligible, than that of one who is not 
L any respect under the control of any such person as a master, 
.ccordingly, by these means the condition of the servant may 
e so eligible, that his entrance into it, and his continuance in it, 
may have been altogether the result of his own choice. That 
le nature of the two conditions may be the more clearly under- 
;ood, it may be of use to show the sort of correspondency there 
between the offences which affect the existence of the one, and 
lose which affect the existence of the other. That this cor- 
espondency cannot but be very intimate is obvious at first sight, 
t is not, however, that a given offence in the former catalogue 
oincides with an offence of the same name in the latter cata- 
)gue : usurpation of servantship with usurpation of mastership, 
or example. But the case is, that an offence of one denomina- 
.on in the one catalogue coincides with an offence of a different 
enomination in the other catalogue. Nor is the coincidence 
onstant and certain: but liable to contingencies, as we shall see. 
irst, then, wrongful non-investment of the condition of a ser- 
ant, if it be the offence of one who should have been the master, 
oincides with wrongful detrectation of mastership : if it be the 
ffence of a third person, it involves in it non-investment of 
aastership, which, provided the mastership be in the eyes of him 
?ho should have been master a beneficial thing, but not other- 
rise, is wrongful. 2. Wrongful interception of the condition of 
servant, if it be the offence of him who should have been 
laster, coincides with wrongful detrectation of mastership : if it 
e the offence of a third person, and the mastership be a bene- 
cial thing, it involves in it wrongful interception of master- 
iip. 3. Wrongful divestment of servantship, if it be the offence 
f the master, but not otherwise, coincides with wrongful ab- 
ication of mastership : if it be the offence of a stranger, it 
ivolves in it divestment of mastership, which, in as far as the 
tastership is a beneficial thing, is wrongful. 4. Usurpation of 
jrvantship coincides necessarily with wrongful imposition of 
taster ship : it will be apt to involve in it wrongful divestment 

266 Division of Offences. [CHAP. 

of mastership : but this only in the case where the usurper, pre 
viously to the usurpation, was in a state of servitude under some 
other master. 5. Wrongful investment of servantship (the ser- 
vantship being considered as a beneficial thing) coincides with 
imposition of mastership ; which, if in the eyes of the pretended 
master the mastership should chance to be a burthen, will be 
wrongful. 6. Wrongful abdication of servantship coincides with 
wrongful divestment of mastership. 7. Wrongful detrectation 
of servantship, with wrongful non-investment of mastership. 
8. Wrongful imposition of servantship, if it be the offence of the 
pretended master, coincides with usurpation of mastership : if 
it be the offence of a stranger, it involves in it imposition of 
mastership, which, if in the eyes of the pretended master the 
mastership should be a burthen, will be wrongful. As to abuse 
of mastership, disturbance of mastership, breach of duty in 
servants, elopement of servants, and servant-stealing, these are 
offences which, without any change of denomination, bear equa 
relation to both conditions. And thus we may reckon thirteen 
sorts of offences to which the condition of a servant stands ex 
posed : viz. I. Wrongful non-investment of servantship. 2 
Wrongful interception of servantship. 3. Wrongful divestmenl 
of servantship. 4. Usurpation of servantship. 5- Wrongfu, 
investment of servantship. 6. Wrongful abdication of servant- 
ship. 7. Wrongful detrectation of servantship. 8. Wrongful 
imposition of servantship. 9. Abuse of mastership. 10. Dis- 1 , 
turbance of mastership, n. Breach of duty in servants,! 
12. Elopement of servants. 13. Servant-stealing. 
Guardian- XLIV. We now come to the offences to which the conditiori 
Necessity of of a guardian is exposed. A guardian is one who is investecl 
tion! ns< l " with power over another, living within the compass of the sanul 
family, and called a ward ; the power being to be exercised foil 
the benefit of the ward. Now then, what are the cases in whicll 
it can be for the benefit of one man, that another, living withiil 
the compass of the same family, should exercise power over him I 
Consider either of the parties by himself, and suppose him, ill 
point of understanding, to be on a level with the other, it seemil 

vi.] Division of Offences. 267 

| vident enough that no such cases can ever exist *. To the pro- 
uction of happiness on the part of any given person (in like 
kanner as to the production of any other effect which is the re- 
alt of human agency) three things it is necessary should concur : 
jnowledge, inclination, and physical power. Now as there is no 
lan who is so sure of being inclined, on all occasions, to promote 
our happiness as you yourself are, so neither is there any man 
rho upon the whole can have had so good opportunities as you 
mst have had of knowing what is most conducive to that pur- 
ose. For who should know so well as you do what it is that 
ives you pain or pleasure 2 ? Moreover, as to power, it is mani- 
st that no superiority in this respect, on the part of a stranger, 
>uld, for a constancy, make up for so great a deficiency as he 
lust lie under in respect of two such material points as know- 
dge and inclination. If then there be a case where it can be 
>r the advantage of one man to be under the power of another, 
must be on account of some palpable and very considerable 
3ficiency, on the part of the former, in point of intellects, or 
srhich is the same thing in other words) in point of knowledge 
understanding. Now there are two cases in which such pal- 
ible deficiency is known to take place. These are, I. Where 
man s intellect is not yet arrived at that state in which it is 
,pable of directing his own inclination in the pursuit of happi- 
jss : this is the case of infancy 3 . 2. Where by some particular 
lown or unknown circumstance his intellect has either never 
rived at that state, or having arrived at it has fallen from it : 
tiich is the case of insanity. 

By what means then is it to be ascertained whether a man s 
tellect is in that state or no ? For exhibiting the quantity of 
>nsible heat in a human body we have a very tolerable sort of 
strument, the thermometer ; but for exhibiting the quantity 

Consider them together indeed, take the sum of the two interests, 
d the case, as we have seen (supra, xl), is then the reverse. That case, 
is to be remembered, proceeds only upon the supposition that the two 
rties are obliged to live together ; for suppose it to be at their option to 
rt, the necessity of establishing the power ceases. 
1 Ch. xvii. [Limits], i. 
See ch. xiii. [Cases unmeet], iii. 

268 Division of Offences. [CHAP, 

of intelligence, we have no such instrument. It is evident; 
therefore, that the line which separates the quantity of intelli 
gence which is sufficient for the purposes of self-government 
from that which is not sufficient, must be, in a great measurej 
arbitrary. Where the insufficiency is the result of want of agej 
the sufficient quantity of intelligence, be it what it may, do 
not accrue to all at the same period of their lives. It becom 
therefore necessary for legislators to cut the gordian knot, an 
fix upon a particular period, at which and not before, truly 
not, every person whatever shall be deemed, as far as depen< 
upon age, to be in possession of this sufficient quantity 1 . 
this case then a line is drawn which may be the same for evei 
man, and in the description of which, such as it is, whatev 
persons are concerned may be certain of agreeing : the circum 
stance of time affording a mark by which the line in questk 
may be traced with the utmost degree of nicety. On the oth 
hand, where the insufficiency is the result of insanity, there 
not even this resource : so that here the legislator has no oth 
expedient than to appoint some particular person or persons 
give a particular determination of the question, in every i 
stance in which it occurs, according to his or their particula 
and arbitrary discretion. Arbitrary enough it must be at an 
rate, since the only way in which it can be exercised is 1 
considering whether the share of intelligence possessed by tl 
individual in question does or does not come up to the loo 
and indeterminate idea which persons so appointed may chan 
to entertain with respect to the quantity which is deeme 

1 In certain nations, women, whether married or not, have been place 
in a state of perpetual wardship : this has been evidently founded on t 
notion of a decided inferiority in point of intellects on the part of the fema 
sex, analogous to that which is the result of infancy or insanity on the pa 
of the male. This is not the only instance in which tyranny has take 
advantage of its own wrong, alleging as a reason for the domination 
exercises, an imbecility, which, as far as it has been real, has been product 
by the abuse of that very power which it is brought to justify. Aristotl 
fascinated by the prejudice of the times, divides mankind into two distin 
species, that of freemen, and that of slaves. Certain men were born to " 
slaves, and ought to be slaves. Why ? Because they are so. 

Division of Offences. 269 

XLV. The line then being drawn, or supposed to be so, it i 

pedient to a man who cannot, with safety to himself, be left in it. 

s own power, that he should be placed in the power of another. 

ow long then should he remain so ? Just so long as his in- 

ility is supposed to continue : that is, in the case of infancy, 

1 he arrives at that period at which the law deems him to be 

full age : in the case of insanity, till he be of sound mind and 

iderstanding. Now it is evident, that this period, in the case 

infancy, may not arrive for a considerable time : and in the 

se of insanity, perhaps never. The duration of the power be- 

nging to this trust must therefore, in the one case, be very 

nsiderable ; in the other case, indefinite. 

XL VI. The next point to consider, is what may be the extent Powers that 

it ? for as to what ought to be, that is a matter to be settled, duties that 

. . ought to be 

>t in a general analytical sketch, but in a particular and cir- annexed 

mstantial dissertation. By possibility, then, this power may 
>ssess any extent that can be imagined : it may extend to any 
ts which, physically speaking, it may be in the power of the 
ard to perform himself, or be the object of if exercised by the 
lardian. Conceive the power, for a moment, to stand upon 
us footing : the condition of the ward stands now exactly 
pon a footing with pure slavery. Add the obligation by which 
.e power is turned into a trust : the limits of the power are 
>w very considerably narrowed. What then is the purport of 
ds obligation ? Of what nature is the course of conduct it 
escribes ? It is such a course of conduct as shall be best cal- 
ilated for procuring to the ward the greatest quantity of hap- 
ness which his faculties, and the circumstances he is in, will 
Imit of : saving always, in the first place, the regard which the 
lardian is permitted to show to his own happiness ; and, in the 
cond place, that which he is obliged, as well as permitted, to 
.ow to that of other men. This is, in fact, no other than that 
<urse of conduct which the ward, did he but know how, ought, in 
dnt of prudence, to maintain of himself : so that the business 
the former is to govern the latter precisely in the manner in 
lich this latter ought to govern himself. Now to instruct 

270 Division of Offences. [CHAP, 

each individual in what manner to govern his own conduct ii 
the details of life, is the particular business of private ethics , 
to instruct individuals in what manner to govern the conduc 1 , 
of those whose happiness, during nonage, is committed to th< 
charge, is the business of the art of private education. T 
details, therefore, of the rules to be given for that purpose, ai 
more than the acts which are capable of being committed 
violation of those rules, belong not to the art of legislation 
since, as will be seen more particularly hereafter 1 , such deta 
could not, with any chance of advantage, be provided for by t 
legislator. Some general outlines might indeed be drawn 
his authority : and, in point of fact, some are in every civiliz 
state. But such regulations, it is evident, must be liable 
great variation : in the first place, according to the infini 
diversity of civil conditions which a man may stand invest 
with in any given state : in the next place, according to t 
diversity of local circumstances that may influence the nature 
the conditions which may chance to be established in differe 
states. On this account, the offences which would be constitut 
by such regulations could not be comprised under any conci 
and settled denominations, capable of a permanent and extensii 
application. No place, therefore, can be allotted to them her< 
Offences XL VII. By what has been said, we are the better prepare 
conditkm of 6 f or taking an account of the offences to which the condition 
* question stands exposed. Guardianship being a private trus 
is of course exposed to those offences, and no others, by which 
private trust is liable to be affected. Some of them, howevc 
on account of the special quality of the trust, will admit of son 
further particularity of description. In the first place, breac 
of this species of trust may be termed mismanagement 
guardianship : in the second place, of whatever nature tl 
duties are which are capable of being annexed to this conditio: 
it must often happen, that in order to fulfil them, it is necessai 
the guardian should be at a certain particular place. Mi 
management of guardianship, when it consists in the not bein 
* See ch. xvii. [Limits], i. 

vi.] Division of Offences. 371 

n the occasion in question, at the place in question, may be 
eime&desertion of guardianship. Thirdly, It is manifest enough, 
lat the object which the guardian ought to propose to himself, 
Q the exercise of the powers to which those duties are annexed, 

to procure for the ward the greatest quantity of happiness 
rhich can be procured for him, consistently with the regard 
rhich is due to the other interests that have been mentioned : 
or this is the object which the ward would have proposed to 
imself, and might and ought to have been allowed to propose 
o himself, had he been capable of governing his own conduct, 
bw, in order to procure this happiness, it is necessary that he 
lould possess a certain power over the objects on the use of 
rhich such happiness depends. These objects are either the 
erson of the ward himself, or other objects that are extraneous 

him. These other objects are either things or persons. As 

things, then, objects of this class, inas far as aman s happiness 
epends upon the use of them, are styled his property. The 
ase is the same with the services of any persons over whom he 
my happen to possess a beneficial power, or to whose services he 
lay happen to possess a beneficial right. Now when property 
E any kind, which is in trust, suffers by the delinquency of him 
dth whom it is in trust, such offence, of whatever nature it is 

1 other respects, may be styled dissipation in breach of trust : 
nd if it be attended with a profit to the trustee, it may be 
;yled peculation 1 . Fourthly, For one person to exercise a power 
any kind over another, it is necessary that the latter should 
ither perform certain acts, upon being commanded so to do by 
ic former, or at least should suffer certain acts to be exercised 
pon himself. In this respect a ward must stand upon the 
>oting of a servant : and the condition of a ward must, in this 
aspect, stand exposed to the same offences to which that of a 
>rvant stands exposed : that is, on the part of a stranger, to 
Isturbance, which, in particular circumstances, will amount to 
eft : on the part of the ward, to breach of duty : which, in 
irticular circumstances, maybe effected by elopement. Fifthly, 

1 Supra, xxxv. 

Division of Offences. [CHAP. 

There does not seem to be any offence concerning guardianship 
that corresponds to abuse of trust : I mean in the sense to which 
the last-mentioned denomination has been here confined \ The 
reason is, that guardianship, being a trust of a private nature 
does notj as such, confer upon the trustee any power, either ove 
the persons or over the property of any party, other than th 
beneficiary himself. If by accident it confers on the trustee 
power over any persons whose services constitute a part of th 
property of the beneficiary, the trustee becomes thereby, ii 
certain respects, the master of such servants 2 . Sixthly, Bribery 
also is a sort of offence to which, in this case, there is not com 
monly much temptation. It is an offence, however, which b] 
possibility is capable of taking this direction : and must there 
fore be aggregated to the number of the offences to which th 
condition of a guardian stands exposed. And thus we have in 
all seventeen of these offences : viz. I. Wrongful non-investmen 
of guardianship. 2. Wrongful interception of guardianship 
3. Wrongful divestment of guardianship. 4. Usurpation o 
guardianship. 5. Wrongful investment of guardianship. 6 
Wrongful abdication of guardianship. 7. Detrectation o 
guardianship. 8. Wrongful imposition of guardianship. 9 
Mismanagement of guardianship. 10. Desertion of guardian 
ship. ii. Dissipation in prejudice of wardship. 12. Peculatio 
in prejudice of wardship. 13. Disturbance of guardianship. 
Breach of duty to guardians. 15. Elopement from guardians 
16. Ward- stealing. 17. Bribery in prejudice of wardship. 
Offences XL VIII. Next, with regard to offences to which the con 
conSnof dition of wardship is exposed. Those which first affect th 
existence of the condition itself are as follows : I. Wrongfu 
non-investment of the condition of a ward. This, if it be th 
offence of one who should have been guardian, coincides wit : 
wrongful detrectation of guardianship : if it be the offence c 
a third person, it involves in it non-investment of guardiar 
ship, which, provided the guardianship is, in the eyes of hii 
who should have been guardian, a desirable thing, is wrongfu 
1 Vide supra, xxv. 2 Vide supra, xl. 

:vi.] Division of Offences. 273 

2. Wrongful interception of wardship. This, if it be the offence 
)f him who should have been guardian, coincides with wrongful 
detrectation of guardianship : if it be the offence of a third 
>erson, it involves in it interception of guardianship, which, 
>rovided the guardianship is, in the eyes of him who should 
lave been guardian, a desirable thing, is wrongful. 3. Wrongful 
Livestment of wardship. This, if it be the offence of the 
guardian, but not otherwise, coincides with wrongful abdication 
of guardianship : if it be the offence of a third person, it in 
volves in it divestment of guardianship, which, if the guardian- 
hip is, in the eyes of the guardian, a desirable thing, is wrongful. 
.. Usurpation of the condition of a ward : an offence not very 
likely to be committed. This coincides at any rate with wrong- 
ul imposition of guardianship ; and if the usurper were already 
under the guardianship of another guardian, it will involve in 
t wrongful divestment of such guardianship l . 5. Wrongful 
nvestment of wardship (the wardship being considered as a 
)eneficial thing) : this coincides with impositionof guardianship, 
which, if in the eyes of the pretended guardian the guardianship 
hould be a burthen, will be wrongful. 6. Wrongful abdication 
f wardship. This coincides with wrongful divestment of 
guardianship. 7. Wrongful detrectation of wardship. This coin- 
ides with wrongful interception of guardianship. 8. Wrongful 
mposition of wardship. This, if the offender be the pretended 
5uardian,coincides with usurpationof guardianship: if a stranger, 
involves in it wrongful imposition of guardianship. As to 
uch of the offences relative to this condition, as concern the 
onsequences of it while subsisting, they are of such a nature 
hat, without any change of denomination, they belong equally 

the condition of a guardian and that of a ward. We may 

1 This effect it may be thought will not necessarily take place : since a 
rard may have two guardians. One man then is guardian by right : 
j nother man comes and makes himself so by usurpation. This may very 
J r ell be, and yet the former may continue guardian notwithstanding. How 
jaen (it may be asked) is he divested of his guardianship ? The answer 

1 Certainly not of the whole of it : but, however, of a part of it : of such 
j art as is occupied, if one may so say, that is, of such part of the powers 

ad rights belonging to it as are exercised, by the usurper. 


374 Division of Offences. [CHAP. 

therefore reckon seventeen sorts of offences relative to the con 
dition of a ward : I. Wrongful non-investment of wardship. 
2. Wrongful interception of wardship. 3. Wrongful divestment 
of wardship. 4. Usurpation of wardship. 5. Wrongful invest 
ment of wardship. 6. Wrongful abdication of wardship. 7. 
Wrongful detrectation of wardship. 8. Wrongful imposition of 
wardship. 9. Mismanagement of guardianship. 10. Desertion 
of guardianship, n. Dissipation in prejudice of wardship. 
12. Peculation in prejudice of wardship. 13. Disturbance of 
guardianship. 14. Breach of duty to guardians. 15. Elope 
ment from guardians. 16. Ward-stealing. 17. Bribery in 
prejudice of wardship. 
Offences XLIX. We come now to the offences to which the condition \ 

touching the 

condition of of a parent stands exposed : and first, with regard to those by 
which the very existence of the condition is affected. On this 
occasion, in order to see the more clearly into the subject, it will 
be necessary to distinguish bet ween the natural relationship, and 
the legal relationship which is superinduced as it were upon the 
natural one. The natural one being constituted by a particula 
event, which, either on account of its being already past, or on 
some other account, is equally out of the power of the law 
neither is, nor can be made, the subject of an offence. 7s a man 
your father ? It is not any offence of mine that can make you 
not his son. Is he not your father ? It is not any offence o 
mine that can render him so. But although he does in fact bea: 
that relation to you, I, by an offence of mine, may perhaps so 
manage matters, that he shall not be thought to bear it : which 
with respect to any legal advantages which either he or you 
could derive from such relationship, will be the same thing as i 
he did not. In the capacity of a witness, I may cause the 
judges to believe that he is not your father, and to decree 
accordingly : or, in the capacity of a judge, I may myself decree 
him not to be your father. Leaving then the purely natura 
relationship as an object equally out of the reach of justice anc 
injustice, the legal condition, it is evident, will stand exposed t( 
the same offences, neither more nor less, as every other condition 

xvi. J Division of Offences. 

that is capable of being either beneficial or burthensome, stands 
exposed to. Next, with regard to the exercise of the functions 
belonging to this condition, considered as still subsisting. In 
parentality there must be two persons concerned, the father and 
the mother. The condition of a parent includes, therefore, two 
conditions ; that of a father, and that of a mother, with respect 
to such or such a child. Now it is evident, that between these 
two parties, whatever beneficiary powers, and other rights, as 
also whatever obligations, are annexed to the condition of a 
parent, may be shared in any proportions that can be imagined. 
But if in these several objects of legal creation, each of these two 
parties have severally a share, and if the interests of all these 
parties are in any degree provided for, it is evident that each of 
the parents will stand, with relation to the child, in two several 
capacities : that of a master, and that of a guardian. The con 
dition of a parent then, in as far as it is the work of law, may 
be considered as a complex condition, compounded of that of a 
guardian, and that of a master. To the parent then, in quality 
of guardian, results a set of duties, involving, as necessary to 
the discharge of them, certain powers : to the child, in the 
character of a ward, a set of rights corresponding to the parent s 
duties, and a set of duties corresponding to his powers. To the 
parent again, in quality of master, a set of beneficiary powers, 
without any other necessary limitation (so long as they last) 
than what is annexed to them by the duties incumbent on him 
.n quality of a guardian : to the child, in the character of a 
servant, a set of duties corresponding to the parent s beneficiary 
powers, and without any other necessary limitation (so long as 
;hey last) than what is annexed to them by the rights which 
Belong to the child in his capacity of ward. The condition of a 
3arent will therefore be exposed to all the offences to which 
ither that of a guardian or that of a master are exposed : and, 
is each of the parents will partake, more or less, of both those 
iharacters, the offences to which the two conditions are exposed 
I nay be nominally, as they will be substantially, the same. Taking 
hem then all together, the offences to which the condition of 

T 2 

276 Division of Offences. [CHAP- 

a parent is exposed will stand as follows : I. Wrongful non- 
investment of parentality 1 . 2. Wrongful interception of parent 
ality. 3. Wrongful divestment of parentality. 4. Usurpation 
of parentality. 5. Wrongful in vestment of parentality. 6. Wrong 
ful abdication of parentality. 7. Wrongful detrectation of 
parentality. 8. Wrongful imposition of parentality. 9. Mis 
management of parental guardianship. 10. Desertionof parental 
guardianship, n. Dissipation in prejudice of filial wardship. 
12. Peculation in prejudice of filial wardship. 13. Abuse of 
parental powers. 14. Disturbance of parental guardianship. 
15. Breach of duty to parents. 16. Elopement from parents. 
17. Child- stealing. 18. Bribery in prejudice of filial wardship. 
Offences L. Next with regard to the offences to which the filial con- 
filial con- dition 2 , the condition of a son or daughter, stands exposed. The 
principles to be pursued in the investigation of offences of this 
description have already been sufficiently developed. It will be 
sufficient, therefore, to enumerate them without further dis 
cussion. The only peculiarities by which offences relative to 
the condition in question stand distinguished from the offences 
relative to all the preceding conditions, depend upon this one 

1 At first view it may seem a solecism to speak of the condition of 
parentality as one which a man can have need to be invested with. The 
reason is, that it is not common for any ceremony to be required as neces 
sary to a man s being deemed in law the father of such or such a child. 
But the institution of such a ceremony, whether advisable or not, is at 
least perfectly conceivable. Nor are there wanting cases in which it has 
actually been exemplified. By an article in the Roman law, adopted by 
many modern nations, an illegitimate child is rendered legitimate by the 
subsequent marriage of his parents. If then a priest, or other person whose 
office it was, were to refuse to join a man and woman in matrimony, such 
refusal, besides being a wrongful non-investment with respect to the two 
matrimonial conditions, would be a wrongful non-investment of parentality 
and filiation, to the prejudice of any children who should have been 

8 In English we have no word that will serve to express with propriety 
the person who bears the relation opposed to that of parent. The word 
child is ambiguous, being employed in another sense, perhaps more fre 
quently than in this : more frequently in opposition to a person of full age, 
an adult, than in correlation to a parent. For the condition itself we have 
no other word than filiation : an ill-contrived term, not analogous to 
paternity and maternity : the proper term would have been filiality : the 
word filiation is as frequently, perhaps, and more consistently, put for the 
act of establishing a person in the possession of the condition of filiality. 

xvi.] Division of Offences. 277 

circumstance ; viz. that it is certain every one must have had a 
father and a mother : at the same time that it is not certain that 
every one must have had a master, a servant, a guardian, or a 
ward. It will be observed all along, that where a person, from 
whom, if alive, the benefit would be taken, or on whom the 
burthen would be imposed, be dead, so much of the mischief is 
j extinct along with the object of the offence. There still, how- 
j ever, remains so much of the mischief as depends upon the ad 
vantage or disadvantage which might accrue to persons related, 
or supposed to be related, in the several remoter degrees, to him 
in question. The catalogue then of these offences stands as 
follows : i. Wrongful non investment of filiation. This, if it be 
the offence of him or her who should have been recognised as the 
i parent, coincides with wrongful detrectation of parentality : if it 
be the offence of a third person, it involves in it non-investment 
of parentality, which, provided the parentality is, in the eyes of 
him or her who should have been recognised as the parent, a 
desirable thing, is wrongful. 2. Wrongful interception of filia- 
jtion. This, if it be the offence of him or her who should have 
jbeen recognised as the parent, coincides with wrongful detrecta 
tion of parentality : if it be the offence of a third person, it 
involves in it interception of parentality, which, provided the 
parentality is, in the eyes of him or her who should have been 
recognised as parent, a desirable thing, is wrongful. 3. Wrongful 
divestment of filiation. This, if it be the offence of him or her 
who should be recognised as parent, coincides with wrongful 
abdication of parentality : if it be the offence of a third person, 
j t involves in it divestment of parentality ; to wit, of paternity, 
pr of maternity, or of both ; which, if the parentality is, in the 
jiyes of him or her who should be recognised as parent, a desir- 
ible thing, are respectively wrongful. 4. Usurpation of filiation. 
This coincides with wrongful imposition of parentality ; to wit, 
j either of paternity, or of maternity, or of both : and necessarily 
I nvolves in it divestment of parentality, which, if the parentality 
phus divested were, in the eyes of him or her who are thus 
livested of it, a desirable thing, is wrongful 5. Wrongful 

278 Division of Offences. [CHAP. 

investment of filiation : (the filiation being considered as a bene 
ficial thing.) This coincides with imposition of parentality, which, 
if in the eyes of the pretended father or mother the parentality 
should be an undesirable thing, will be wrongful. 6. Wrongful 
abdication of filiation. This necessarily coincides with wrongful 
divestment of parentality ; it also is apt to involve in it wrongful 
imposition of parentality ; though not necessarily either to the 
advantage or to the prejudice of any certain person. For if a 
man, supposed at first to be your son, appears afterwards not to 
be yours, it is certain indeed that he is the son of some other 
man, but it may not appear who that other man is. 7. Wrongfu 
detrectation of filiation. This coincides with wrongful non 
investment or wrongful interception of parentality. 8. Wrongfu 
imposition of filiation. This, if it be the offence of the pretendec 
parent, coincides necessarily with usurpation of parentality : if i1 
be the offence of a third person, it necessarily involves imposition 
of parentality ; as also divestment of parentality : either or both 
of which, according to the circumstance abovementioned,may or 
may not bewrongful. 9. Mismanagement of parental guardian 
ship. 10. Desertion of parental guardianship, n. Dissipation 
in prejudice of filial wardship. 12. Peculation in prejudice o 
filial wardship. 13. Abuse of parental power. 14. Disturbance 
of parental guardianship. 15. Breach of duty to parents. 
16. Elopement from parents. 17. Child- stealing. 18. Bribery 
in prejudice of parental guardianship. 

Condition of LI. We shall now be able to apply ourselves with som< 
Powers, advantage to the examination of the several offences to which 
rights, that the marital condition, or condition of a husband, stands exposed 
tt. A husband is a man, between whom and a certain woman, who 
in this case is called his wife, there subsists a legal obligation f 01 
the purpose of their living together, and in particular for th< 
purpose of a sexual intercourse to be carried on between them 
This obligation will naturally be considered in four points o: 
view : i. In respect of its commencement. 2. In respect of th< 
placing of it. 3. In respect of the nature of it. 4. In respect o: 
its duration. Firstthen, it is evident, that in point of possibility 

xvi.] Division of Offences. 279 

one method of commencement is as conceivable as another : the 
time of its commencement might have been marked by one sort 
of event (by one sort of signal, as it may here be called) as well 
as by another. But in practice the signal has usually been, as 
in point of utility it ought constantly to be, a contract entered 
into by the parties : that is, a set of signs, pitched upon by the 
law, as expressive of their mutual consent, to take upon them this 
condition. Secondly, and thirdly, with regard to the placing of 
the obligations which are the result of the contract, it is evident 
that they must rest either solely on one side, or mutually on both. 
On the first supposition, the condition is not to be distinguished 
from pure slavery. In this case, either the wife must be the 
slave of the husband, or the husband of the wife. The first of 
these suppositions has perhaps never been exemplified ; the op 
posing influence of physical causes being too universal to have 
ever been surmounted : the latter seems to have been exemplified 
but too often ; perhaps among the first Romans ; at any rate, in 
many barbarous nations. Thirdly, with regard to the nature 
of the obligations. If they are not suffered to rest all on one 
side, certain rights are thereby given to the other. There must, 
therefore, be rights on both sides. Now, where there are mutual 
rights possessed by two persons, as against each other, either 
there are powers annexed to those rights, or not. But the 
persons in question are, by the supposition, to live together : in 
which case we have shown 1 , that it is not only expedient, but in 
a manner necessary, that on one side there should be powers. 
Now it is only on one side that powers can be : for suppose them 
on both sides, and they destroy one another. The question is 
then, In which of the parties these powers shall be lodged ? we 
have shown, that on the principle of utility they ought to be 
lodged in the husband. The powers then which subsist being 
lodged in the husband, the next question is, Shall the interest 
of one party only, or of both, be consulted in the exercise of 
them ? it is evident, that on the principle of utility the interests 
of both ought alike to be consulted : since in two persons, 
1 Supra, xl. note. 

280 Division of Offences. [CHAP. 

taken together, more happiness is producible than in one. This 
being the case, it is manifest, that the legal relation which the 
husband will bear to the wife will be a complex one : com 
pounded of that of master and that of guardian. 
Offences LII. The offences then to which the condition of a husband 

condition of will be exposed, will be the sum of those to which the two con- 
a husband. ,.,. _ _. 

ditions or master and guardian are exposed. Thus far the 
condition of a husband, with respect to the general outlines of it, 
stands upon the same footing as that of a parent. But there are 
certain reciprocal services, which being the main subject of the 
matrimonial contract, constitute the essence of the two matri 
monial relations, and which neither a master nor guardian, as 
such, nor a parent, at any rate, have usually been permitted to 
receive. These must of course have been distinguished from the 
indiscriminate train of services at large which the husband in 
his character of master is empowered to exact, and of those 
which in his character of guardian he is bound to render. Being 
thus distinguished, the offences relative to the two conditions 
have, in many instances, in as far as they have reference to these 
peculiar services, acquired particular denominations. Inthenrst 
place, with regard to the contract, from the celebration of which 
the legal condition dates its existence. It is obvious that in 
point of possibility, this contract might, on the part of either 
sex, subsist with respect to several persons of the other sex at 
the same time : the husband might have any number of wives : 
the wife might have any number of husbands : the husband 
might enter into the contract with a number of wives at the 
same time : or, if with only one at a time, he might reserve to 
himself a right of engaging in a similar contract with any num 
ber, or with only such or such a number of other women after 
wards, during the continuance of each former contract. This 
latter accordingly is the footing upon which, as is well known, 
marriage isandhasbeen established in many extensive countries : 
particularly in all those which profess the Mahometan religion. 
In point of possibility, it is evident that the like liberty might be 
reserved on the part of the wife : though in point of practice no 

xvi.] Division of Offences. 281 

examples of such an arrangement seem ever to have occurred. 
Which of all these arrangements is in point of utility the most 
expedient, is a question which would require too much dis 
cussion to answer in the course of an analytical process like the 
present, and which belongs indeed to the civil branch of legisla 
tion, rather than to the penal 1 . In Christian countries, the 
jjolemnization of any such contract is made to exclude the 
jiolemnization of anysubsequent one duringthe continuanceof a 
ormer : and the solemnization of any such subsequent contract 
js accordingly treated as an offence, under the name of Polygamy. 
Polygamy then is at any rate, on the part of the man, a par- 
iicular modification of that offence which may be styled usurpa 
tion of the condition of a husband. As to its other effects, they 
HI be different, according as it was the man only, or the woman 
;-nly, or both, that were in a state of matrimony at the time of 
;he commission of the offence. If the man only, then his offence 
jivolves in it pro tanto that of wrongful divestment of the con- 
.jition of a wife, in prejudice of his prior wife 2 . If the woman 
|nly, then it involves in it pro tanto that of wrongful divestment 
llf the condition of a husband, in prejudice of her prior husband. 
IE both were already married, it of course involves both the 
Tongf ul divestments which have j ust b een mentioned . And on 
lie other hand also, the converse of all this may be observed 
1 ith regard to polygamy on the part of the woman. Secondly, As 
lie engaging not to enter into any subsequent engagement of the 
(1, ke kind during the continuance of the first, is one of the con- 
tions on which the law lends its sanction to the first ; so 
lother is, the inserting as one of the articles of this engagement, 
undertaking not to render to, or accept from, any other 
irson the services which form the characteristic object of it : 
:e rendering or acceptance of any such services is accordingly 
eated as an offence, under the name of adultery : under which 
ime is also comprised the offence of the stranger, who, in the 

1 See ch. xvii. [Limits], iv. 

8 In this case also, if the woman knew not of the prior marriage, it ia 
sides a species of seduction ; and, in as far as it affects her, belongs to 
other division of the offences of this class. Vide supra, xxxvi. 

28% Division of Offences. [CHAP, 

commission of the above offence, is the necessary accomplice. 
Thirdly, Disturbing either of the parties to this engagement, ir 
the possession of these characteristic services, may, in like man 
ner, be distinguished from the offence of disturbing them in th( 
enjoyment of the miscellaneous advantages derivable from th 
same condition ; and on whichever side the blame rests, wheth( 
that of the party, or that of a third person, may be terme 
wrongful withholding of connubial services. And thus we \ 
one-and-twenty sorts of offences to which, as the law stands a 
present in Christian countries, the condition of a husband stam 
exposed : viz. i. Wrongful non-investment of the condition of 
husband. 2. Wrongful interception of the condition of a hu 
band. 3. Wrongful divestment of the condition of a husbam 
4. Usurpation of the condition of a husband. 5. Polygamy 
6. Wrongful investment of the condition of a husband. 
Wrongful abdication of the condition of a husband. 8. Wronj 
ful detrectation of the condition of a husband. 9. Wrongfi 
imposition of the condition of a husband. 10. Mismanagemerj 
of marital guardianship, u. Desertion of marital guardiar 
ship. 12. Dissipation in prejudice of matrimonial wardship. I 
Peculation in prejudice of matrimonial wardship. 14. Abus 
of marital power. 15. Disturbance of marital guardianshi 
16. Wrongful withholding of connubial services. 17. Adultery 
18. Breach of duty to husbands. 19. Elopement from husband 
20. Wife-stealing. 21. Bribery in prejudice of marital guardiar 
ship 1 . 

Offences LIU. Next with regard to the offences to which the conditio 
of a wife stands exposed. From the patterns that have bee 

exhibited already, the coincidences and associations that tai 
place between the offences that concern the existence of this coi 
dition and those which concern the existence of the condition < 
a husband, may easily enough be apprehended without fartlu 

1 I. SEMI-PUBLIC offences. Falsehoods contesting, or offences again 
justice destroying, the validity of the marriages of people of certain d 
scriptions : such as Jews, Quakers, Hugonots, &c. &c. 

II. SELF-REGARDING offences. Improvident marriage on the part 


Division of Offences. 


jpetitions. The catalogue of those now under consideration 
ill be precisely the same in every article as the catalogue last 

LIV. Thus much for the several sorts of offences relative to 
}he several sorts of domestic conditions: those which are consti- 
;uted by such natural relations as are contiguousbeing included, 
here remain those which are uncontiguous : of which, after 
bo much as has been said of the others, it will naturally be ex 
pected that some notice should be taken. These, however, do 
iot afford any of that matter which is necessary to constitute a 
bondition. In point of fact, no power seems ever to be annexed 
X) any of them. A grandfather, perhaps, may be called by the 
|aw to take upon him the guardianship of his orphan grand- 
but then the power he has belongs to him not as grand- 
,ther, but as guardian. In point of possibility, indeed, power 
i|night be annexed to these relations, just as it might to any 
ther. But still no new sort of domestic condition would result 
rom it : since it has been shown that there can be no others, 
hat, being constituted by power, shall be distinct from those 
fhich have been already mentioned. Such as they are, how- 
ver, they have this in common with the before-mentioned rela- 
ns, that they are capable of importing either benefit or 
Burthen : they therefore stand exposed to the several offences 
hereby those or any other relations are liable to be affected in 
t of existence. It might be expected, therefore, that in 
e of these offences, they should be added to the list of the 
tions which are liable to be ob j ects of delinquency. But the 
ict is, that they already stand included in it : and although not 
ftkpressly named, yet as effectually as if they were. On the 
ae hand, it is only by affecting such or such a contiguous rela- 
on that any offence affecting uncontiguous relations can take 
lace. On the other hand, neither can any offence affecting the 
dstence of the contiguous relations be committed, without 
Meeting the existence of an indefinite multitude of such as are 
icontiguous. A false witness comes, and causes it to be be- 
3ved that you are the son of a woman, who, in truth, is not 

284 Division of Offences. [CHAP. 

your mother. What follows ? An endless tribe of other false 
persuasions that you are the grandson of the father and of the 
mother of this supposed mother : that you are the son of some 
husband of hers, or, at least, of some man with whom she has 
cohabited : the grandson of his father and his mother ; and sc 
on : the brother of their other children, if they have any : th* 
brother-in-law of the husbands and wives of those children, 
married : the uncle of the children of those children : and so o 
On the other hand, that you are not the son of your re 
mother, nor of your real father : that you are not the grandso 
of either of your real grandfathers or grandmothers ; and so o 
without end : all which persuasions result from, and are include 
in, the one original false persuasion of your being the son of th 
your pretended mother. 

It should seem, therefore, at first sight, that none of th 
offences against these uncontiguous relations could ever com 
expressly into question : for by the same rule that one ought, 
it might seem ought a thousand others : the offences against tl 
uncontiguous being merged as it w^ere in those which affe 
the contiguous relations. So far, however, is this from bein 
the case, that in speaking of an offence of this stamp, it is n< 
uncommon to hear a great deal said of this or that uncontiguoi 
relationship which it affects, at the same time that no notice 
all shall be taken of any of those which are contiguous. Ho 
happens this ? Because, to the uncontiguous relation are ai 
nexed perhaps certain remarkable advantages or disadvantage 
while to all the intermediate relations none shall be annexe 
which are in comparison worth noticing. Suppose Antony 
Lepidus to have contested the relationship of Octavius (afte 
wards Augustus) to Caius Julius Caesar. How could it 
been done ? It could only have been by contesting, either 
tavius s being the son of Atia, or Atia s being the daughter 
Julia, or Julia s being the daughter of Lucius Julius Caesar, 
Lucius Julius Caesar s being the father of Caius. But to ha 
been the son of Atia, or the grandson of Julia, or the gra 
grandson of Lucius Julius Caesar, was, in comparison, of srtn a 


Division of Offences. 


portance. Those intervening relationships were, compara- 
ively speaking, of no other use to him than in virtue of their 
ing so many necessary links in the genealogical chain which 
imected him with the sovereign of the empire. 
As to the advantages and disadvantages which may happen to 
annexed to any of those uncontiguous relationships, we have 
n already that no powers over the correlative person, nor any 
^responding obligations, are of the number. Of what nature 
hen can they be ? They are, in truth, no other than what are 
he result either of local and accidental institutions, or of some 
pontaneous bias that has been taken by the moral sanction. It 
irould, therefore, be to little purpose to attempt tracing them 
ut a priori by any exhaustive process : all that can be done is, 
o pick up and lay together some of the principal articles in each 
italogue by way of specimen. The advantages which a given 
ilationship is apt to impart, seem to be referable chiefly to the 
blowing heads : i. Chance of succession to the property, or a 
ijart of the property, of the correlative person. 2. Chance of 
ecuniary support, to be yielded by the correlative person, either 
y appointment of law, or by spontaneous donation. 3. Ac- 
jssion of legal rank ; including any legal privileges which may 
vppen to be annexed to it : such as capacity of holding such 
id such beneficial offices ; exemption from such and such 
loljirthensome obligations ; for instance, paying taxes, serving 
irthensome offices, &c. &c. 4. Accession of rank by courtesy ; 
eluding the sort of reputation which is customarily and spon- 
aeously annexed to distinguished birth and family alliance : 
iereon may depend the chance of advancement in the way of 
image, or in a thousand other ways less obvious. The dis- 
. vantages which a given relation is liable to impart, seem to be 
Arable chiefly to the following heads : I. Chance of being 
liged, either by law, or by force of the moral sanction, to yield 
cuniary support to the correlative party. 2. Loss of legal 
ik : including the legal disabilities, as well as the burthensome 
ligations, which the law is apt to annex, sometimes with in- 
q*tice enough, to the lower stations. 3. Loss of rank by 

1 86 Division of Offences. [CHAP 

courtesy : including the loss of the advantages annexed bj 
custom to such rank. 4. Incapacity of contracting matrimony 
with the correlative person, where the supposed consanguinity 
or affinity lies within the prohibited degrees l . 

1 In pursuance of the plan adopted with relation to semi-public and seli 
regarding offences, it may here be proper to exhibit such a catalogue as th 
nature of the design will admit, of the several genera or inferior divisio 
of public offences. 

I. OFFENCES against the EXTERNAL SECURITY of the state, i . Treas 
(in favour of foreign enemies). It may be positive or negative (negat 
consisting, for example, in the not opposing the commission of posith 
2. Espionage (in favour of foreign rivals not yet enemies). 3. Injuries 
foreigners at large (including piracy). 4. Injuries to privileged foreign 
(such as ambassadors). 

II. OFFENCES AGAINST JUSTICE. Offences against judicial trust : v 
Wrongful non- investment of j udicial trust, wrongful interception of j udic 
trust, wrongful divestment of judicial trust, usurpation of judicial tru 
wrongful investment of judicial trust, wrongful abdication of judicial tru 
wrongful detrectation of judicial trust, wrongful imposition of judicial tru 
breach of judicial trust, abuse of judicial trust, disturbance of judic 
trust, and bribery in prejudice of judicial trust. 

Breach and abuse of judicial trust may be either intentional or uninte 
tional. Intentional is culpable at any rate. Unintentional will proce 
either from inadvertence, or from mis-supposal : if the inadvertence 
coupled with heedlessness, or the mis-supposal with rashness,it is culpab 
if not, blameless. For the particular acts by which the exercise of judic 
trust may be disturbed see B. i. tit. [Offences against justice]. They are 
multifarious, and too ill provided with names, to be exhibited here. 

If a man fails in fulfilling the duties of this trust, and thereby com 
either to break or to abuse it, it must be through some deficiency in 
three requisite and only requisite endowments, of knowledge, inclinati 
and power. [See supra, xxvii.] A deficiency in any of those points 
any person be in fault, may proceed either from his own fault, or from 
fault of those who should act with or under him. If persons who are 
fault are persons invested with judicial trust, the offence comes under 
head of breach or abuse of trust : if other persons, under that of distur 
ance of trust. 

The ill effects of any breach, abuse, or disturbance of judicial trust, 
consist in the production of some article or articles in the list of the m 
chiefs which it ought to be the original purpose of judicial procedure 
remedy or avert, and of those which it ought to be the incidental purpc 
of it to avoid producing. These are either primary (that is immediate] 
remote : remote are of the 2nd, 3rd, or 4th order, and so on. The prima 
are those which import actual pain to persons assignable, and are theref 
mischievous in themselves : the secondary are mischievous on account 
the tendency they have to produce some article or articles in the catalog 
of those of the first order ; and are therefore mischievous in their effec 
Those of the 3rd order are mischievous only on account of the connect* 
they have in the way of productive tendency, as before, with those of 
2nd order : and so on. 

Primary inconveniences, which it ought to be the object of procedi 

xvi.] Division of Offences. 287 

LV. We come now to civil conditions : these, it may well be Civiicon- 
imagined, maybe infinitely various : as various as the acts which ^ 

provide against, are, i. The continuance of the individual offence itself, 

lind thereby the increase as well as continuance of the mischief of it. 2. 

Che continuance of the whole mischief of the individual offence. 3. The 

continuance of a part of the mischief of the individual offence. 4. Total 

vant of amends on the part of persons injured by the offence. 5. Partial 

int of amends on the part of persons injured by the offence. 6. Super- 

ous punishment of delinquents. 7. Unjust punishment of persons 

cused. 8. Unnecessary labour, expense, or other suffering or danger, on 

e part of superior judicial officers. 9. Unnecessary labour, expense, or 

ler suffering or danger, on the part of ministerial or other subordinate 

dicial officers. 10. Unnecessary labour, expense, or other suffering or 

nger, on the part of persons whose co-operation is requisite pro re natd, 

order to make up the necessary complement of knowledge and power 

the part of judicial officers, who are such by profession. 1 1. Unneces- 

ry labour, expense, or other suffering or danger, on the part of persons at 

ge, coming under the sphere of the operations of the persons above- 


Secondary inconveniences are, in the consultative, pre- interpretative (or 
urely civil) branch of procedure, i. Misinterpretation or adjudication, 
the executive (including the penal) branch. 2. Total impunity of de- 
quents : (as favouring the production of other offences of the like 
ture). 3. Partial impunity of delinquents. 4. Application of punish- 
ent improper in specie, though perhaps not in degree (this lessening the 
neficial efficacy of the quantity employed). 5. Uneconomical applica- 
n of punishment, though proper, perhaps, as well in specie as in degree. 
Unnecessary pecuniary expense on the part of the state, 
[nconveniences of the 3rd order are, i. Unnecessary delay. 2. Unneces- 
ry intricacy. 

Inconveniences of the 4th order are, i. Breach, 2. Abuse, 3. Disturb- 
ce, of judicial trust, as above : viz. in as far as these offences are pre- 
ninary to and distinct from those of the 2nd and 3rd orders. 
Inconveniences of the 5th order are, Breach of the several regulations of 
ocedure, or other regulations, made in the view of obviating the incon- 
niences above enumerated : viz. if preliminary and distinct, as before. 
[II. OFFENCES against the PREVENTIVE branch of the POLICE. i. 
fences against phthano-paranomic trust : ((f>9avu , to prevent ; irapavon ia, 
offence). 2. Offences against phthano-symphoric trust : (av/jupopa, a 
.amity). The two trusts may be termed by the common appellation of 
ophylactic : (vpu, beforehand, and tyvXarraj, to guard against). 
IV. OFFENCES against the PUBLIC FORCE, i. Offences against military 
ist, corresponding to those against judicial trust. Military desertion is 
Breach of military duty, or of military trust. Favouring desertion is a 
iturbance of it. 2. Offences against that branch of public trust which 
isists in the management of the several sorts of things appropriated to 
3 purposes of war : such as arsenals, fortifications, dock-yards, ships of 
>r, artillery, ammunition, military magazines, and so forth. It might be 
med polemo-tamieutic : from TroAe/noy, war ; and ra/jiUvs, a steward *. 

A number of different branches of public trust, none of which have yet been provided 
1 i appellatives, have here been brought to view : which then were best ? to coin new names 
iitfflthem out of the Greek; or, instead of a word to make use of a whole sentence? In 

$88 Division of Offences. [CHAP. 

a man may be either commanded or allowed, whether for his 
own benefit, or that of others, to abstain from or to perform, 

I. Offences against epistemo-threptic trust : (eiriarrmr], knowledge ; anc 
Tpetycu, to nourish or promote). 2. Offences against eupcedagogic trust 
(ev, well ; and TT-mSfryo^e cy, to educate). 3. Offences against noso-comia 
trust : (voaos, a disease ; and Kopifa, to take care of). 4. Offences agains 
moro-comial trust : (fj.6pos, an insane person). 5. Offences against ptocho 
comial trust : (TTTCUXO/, the poor). 6. Offences against antembletic trus 
(di/Te/w/3aAAa>, to bestow in reparation of a loss). 7. Offences against hed 
narchic trust : (^Sovai, pleasures ; and apxapai, to preside over). 11 
above are examples of the principal establishments which should or mig 
be set on foot for the purpose of making, in so many different ways, 
positive addition to the stock of national felicity. To exhibit an exhaustiv 
analysis of the possible total of these establishments would not be a ver 
easy task : nor on the present occasion is it a necessary one : for be the 
of what nature and in what number they may, the offences to which th 
stand exposed will, in as far as they are offences against trust, be in poin 
of denomination the same : and as to what turns upon the particular natui 
of each trust, they will be of too local a nature to come within the presen 

All these trusts might be comprised under some such general name a 
that of agatho-poieutic trust : (ayaOonoiw, to do good to any one). 

VI. OFFENCES against the PUBLIC WEALTH, i. Non-payment of fo 
feitures. 2. Non-payment of taxes, including smuggling. 3. Breach 
the several regulations made to prevent the evasion of taxes. 4. Offenc 
against fiscal trust : the same as offences against judicial and militar 
trusts. Offences against the original revenue, not accruing either fro 
taxes or forfeitures, such as that arising from the public demesnes, stan 
upon the same footing as offences against private property. 5. Ofifenc 
against demosio-tamieutic trust : (S^ocria, things belonging to the public 
and raft ievs, a steward) viz. against that trust, of which the object is 
apply to their several destinations such articles of the public wealth as ai 
provided for the indiscriminate accommodation of individuals : such 
public roads and waters, public harbours, post-offices, and packet boats, an 
the stock belonging to them; market-places, and other such public buil( 
ings; race-grounds, public walks, and so forth. Offences of this descriptk 
will be apt to coincide with offences against agatho-poieutic trust as abov 
or with offences against ethno-plutistic trust hereafter mentioned, accordir 
as the benefit in question is considered in itself, or as resulting from tl 
application of such or such a branch or portion of the public wealth. 

VII. OFFENCES against POPULATION, i. Emigration. 2. Suicide. 
Procurement of impotence or barrenness. 4. Abortion. 5. Unprolil 
coition. 6. Celibacy. 

VIII. OFFENCES against the NATIONAL WEALTH. i. Idleness. 
Breach of the regulations made in the view of preventing the applicati< 
of industry to purposes less profitable, in prejudice of purposes more pr 
fitable. 3. Offences against ethno-plutistic trust : (tQvos, the nation 
large ; 7rAovno>, to enrich). 

English, and in French, there is no other alternative ; no more than in any of the Otl 
southern languages. It rests with the reader to determine. 


Division of Offences. 


As many different denominations as there are of persons distin 
guished with a view to such commands and allowances (those 

IX. OFFENCES against the SOVEREIGNTY, i. Offences against sovereign 
trust : corresponding to those against judicial, prophylactic, military, and 
fiscal trusts. Offensive rebellion includes wrongful interception, wrongful 
divestment, usurpation, and wrongful investment, of sovereign trust, with 
the offences accessory thereto. Where the trust is in a single person, 
wrongful interception, wrongful divestment, usurpation, and wrongful in 
vestment cannot, any of them, be committed without rebellion : abdication 
and detrectation can never be deemed wrongful : breach and abuse of 
sovereign trust can scarcely be punished : no more can bribe-taking : 
wrongful imposition of it is scarce practicable. When the sovereignty is 
shared among a number, wrongful interception, wrongful divestment, 
usurpation, and wrongful investment, may be committed without rebellion : 
none of the offences against this trust are impracticable : nor is there any 
of them but might be punished. Defensive rebellion is disturbance of this 
trust. Political tumults, political defamation, and political vilification, are 

>ffences accessory to such disturbance. 

Sovereign power (which, upon the principle of utility, can never be other 
bhan fiduciary) is exercised either by rule or without rule : in the latter 
:ase it may be termed autocratic : in the former case it is divided into two 
branches, the legislative and the executive 1 . In either case, where the 
lesignation of the person by whom the power is to be possessed, depends 
lot solely upon mere physical events, such as that of natural succession, 
Hit in any sort upon the will of another person, the latter possesses an 
nvestitive power, or right of investiture, with regard to the power in ques 
tion : in like manner may any person also possess a divestitive power. The 
>owers above enumerated, such as judicial power, military power, and so 
orth, may therefore be exercisable by a man, either directly, proprid 
nanu ; or indirectly, manu aliend a . Power to be exercised manu aliend 
3 investitive, which may or may not be accompanied by divestitive. Of 
overeign power, whether autocratic, legislative, or executive, the several 
mblic trusts above mentioned form so many subordinate branches. Any 
i these powers may be placed, either, i. in an individual; or, 2. in a body 
clitic : who may be either supreme or subordinate. Subordination on the 
>art of a magistrate may be established, i . By the person s being punish- 
ble : 2. By his being removable : 3. By the orders being reversible. 

X. OFFENCES against RELIGION. i. Offences tending to weaken the 
)rce of the religious sanction : including blasphemy and profaneness. 2. 
>ffences tending to misapply the force of the religious sanction : including 
ilse prophecies, and other pretended revelations ; also heresy, where the 
octrine broached is pernicious to the iem\ oral interests of the community. 
. Offences against religious trust, where any such is thought fit to be 

XI. OFFENCES against the NATIONAL INTEREST in general, i. Immoral 
ublications. 2. Offences against the trust of an ambassador ; or, as it 
light be termed, presbeutic trust. 3. Offences against the trust of a 
rivy-counsellor ; or, as it might be termed, symbouleutic trust. 4. In 

See cl\ xvii. [Limits], ii\ 

2 In the former case, the power might be termed in one word, autochirous ; in the latter 
*\ttrochirous . (auros, a man s own ; xeip> a hand ; ere po;, another s). 

290 Division of Offences. [CHAP. 

denominations only excepted which, relate to the conditions 
above spoken of under the name of domestic ones) so many civil 
conditions one might enumerate. Means however, more or less 
explicit, may be found out of circumscribing their infinitude. 

What the materials are, if so they may be called, of which 
conditions, or any other kind of legal possession, can be made 
up, we have already seen : beneficial powers, fiduciary powers, 
beneficial rights, fiduciary rights, relative duties, absolute duties. 
But as many conditions as import a power or right of th 
fiduciary kind, as possessed by the person whose condition i 
in question, belong to the head of trusts. The catalogue o 
the offences to which these conditions are exposed, coincide 
therefore exactly with the catalogue of offences against trust 
under which head they have been considered in a general poin 
of view under the head of offences against trust : and such o 
them as are of a domestic nature, in a more particular manne 
in the character of offences against the several domestic condi 
tions. Conditions constituted by such duties of the relativ 
kind, as have for their counterparts trusts constituted by fidu 
ciary powers, as well as rights on the side of the correlativ 
party, and those of a private nature, have also been already dig 
cussed under the appellation of domestic conditions. The sam 
observation maybe applied to the condi tions constituted by sue 
powers of the beneficial kind over persons as are of a privat 
nature : as also to the subordinate correlative conditions coi 
stituted by the duties corresponding to those rights and power 
As to absolute duties, there is no instance of a condition tin 
created, of which the institution is upon the principle of utilil 
to be justified ; unless the several religious conditions of tl 
monastic kind should be allowed of as examples. There remai 
as the only materials out of which the conditions which yet rl 
main to be considered can be composed, conditions constitute 
by beneficial powers over things ; conditions constituted 

pure or mixed monarchies, prodigality on the part of persons who are abcJ 
the person of the sovereign, though without being invested with any speci) 
trust. 5. Excessive gaming on the part of the same persons. 6. Taki, 
presents from rival powers without leave. 

xvi.] Division of Offences. 391 

beneficial rights to things (that is, rights to powers over things) 
or by rights to those rights, and so on ; conditions constituted 
by rights to services ; and conditions constituted by the duties 
corresponding to those respective rights. Out of these are to be 
taken those of which the materials are the ingredients of the 
several modifications of property, the several conditions of pro 
prietorship. These are the conditions, if such for a moment 
they may be styled, which having but here and there any specific 
names, are not commonly considered on the footing of condi 
tions : so that the acts which, if such conditions were recognised, 
I might be considered as offences against those conditions, are not 
Iwont to be considered in any other light than that of offences 
.against property. 

il Now the case is, as hath been already intimated \ that of 
olthese civil conditions, those which are wont to be considered 
ejimder that name, are not distinguished by any uniform and 
lijexplicit line from those of which the materials are wont to be 
vicarried to the head of property : a set of rights shall, in one 
lujinstance, be considered as constituting an article of property 
ivlrather than a condition : while, in another instance, a set of 
limghts of the same stamp is considered as constituting rather a 
Condition than an article of property. This will probably be 
uticound to be the case in all languages : and the usage is dif- 
;d:erent again in one language from what it is in another. From 
Hffihese causes it seems to be impracticable to subject the class of 
.eiij ivil conditions to any exhaustive method : so that for making 
thai complete collection of them there seems to be no other ex 
pedient than that of searching the language through for them, 
f falind taking them as they come. To exemplify this observation, 
-iai|b may be of use to lay open the structure as it were of two or 
etn-hree of the principal sorts or classes of conditions, comparing 
tuteihem with two or three articles of property which appear to 
j0je nearly of the same complexion : by this means the nature 
iib 0|nd generation, if one may so call it, of both these classes of 
leal objects may be the more clearly understood. 

1 Supra, xvii. 
U 2 

293 Division of Offences. [CHAV. 

The several sorts of civil conditions that are not fiduciary may 
all, or at least the greater part of them, be comprehended under 
the head of rank, or that of profession ; the latter word being 
taken in its most extensive sense, so as to include not only what 
are called the liberal professions, but those also which are exer 
cised by the several sorts of traders, artists, manufacturers, and 
other persons of whatsoever station, who are in the way of 
making a profit by their labour. Among ranks then, as well as 
professions, let us, for the sake of perspicuity, take for examples 
such articles as stand the clearest from any mixture of either 
fiduciary or beneficial power. The rank of knighthood is con 
stituted, how ? by prohibiting all other persons from performing 
certain acts, the performance of which is the symbol of the 
order, at the same time that the knight in question, and his 
companions, are permitted : for instance, to wear a ribbon of a 
certain colour in a certain manner : to call himself by a certain 
title : to use an armorial seal with a certain mark on it. By 
laying all persons but the knight under this prohibition, the 
law subjects them to a set of duties : and since from the dis 
charge of these duties a benefit results to the person in whose 
favour they are created, to wit, the benefit of enjoying such g 
share of extraordinary reputation and respect as men are wonl 
to yield to a person thus distinguished, to discharge them is tcj 
render him a service : and the duty being a duty of the negative 
class, a duty consisting in the performance of certain acts of th 
negative kind 1 , the service is what may be called a service o\ 
forbearance. It appears then, that to generate this conditioii 
there must be two sorts of services : that which is the immej 
diate cause of it, a service of the negative kind, to be renders 
by the community at large : that which is the cause again ol 
this service, a service of the positive kind, to be rendered b i 
the law. 

The condition of a professional man stands upon a narrowe 
footing. To constitute this condition there needs nothing moi 
than a permission given him on the part of the legislator t ; 
1 See ch. vii. [Actions] viii. 

xvi.] Division of Offences. 293 

perform those acts, in the performance of which consists the 
exercise of his profession : to give or sell his advice or assistance 
in matters of law or physic : to give or sell his services as em 
ployed in the executing or overseeing of a manufacture or piece 
of work of such or such a kind : to sell a commodity of such or 
such a sort. Here then we see there is but one sort of service 
requisite ; a service which may be merely of the negative kind, 
to be rendered by the law : the service of permitting him to 
exercise his profession : a service which, if there has been no 
prohibition laid on before, is rendered by simply forbearing to 
prohibit him. 

Now the ideal objects, which in the cases above specified are 
said to be conferred upon a man by the services that are re 
spectively in question, are in both cases not articles of property 
but conditions. By such a behaviour on the part of the law, 
as shall be the reverse of that whereby they were respectively 
produced, a man may be made to forfeit them : and what he is 
then said to forfeit is in neither case his property ; but in one 
his rank or dignity : in the other case, his trade or his 
profession : and in both cases, his condition. 
Other cases there are again in which the law, by a process of 
e same sort with that by which it constituted the former of 
e two above-mentioned conditions, confers on him an ideal 
)bject, which the laws of language have placed under the head 
)f property. The law permits a man to sell books : that is, all 
torts of books in general. Thus far all that it has done is to 
nvest him with a condition : and this condition he would 
qually possess, although everybody else in the world were to 
11 books likewise. Let the law now take an active part in his 
avour, and prohibit all other persons from selling books of a 
in description, he remaining at liberty to sell them as 
efore. It therefore confers on him a sort of exclusive privilege 
r monopoly, which is called a copy-right. But by investing 
!llOIt t im with this right, it is not said to invest him with any new 
r ; )rt of condition : what it invests him with is spoken of as 
Q article of property ; to wit, of that sort of property which is 

294 Division of Offences. [CHAP. 

termed incorporeal x : and so on in the case of an engraving, a 
mechanical engine, a medicine ; or, in short, of a saleable article 
of any other sort. Yet when it gave him an exclusive right of i 
wearing a particular sort of ribbon, the object which it was then 
considered as conferring on him was not an article of property 
but a condition. 

By forbearing to subject you to certain disadvantages, to 
which it subjects an alien, the law confers on you the condition 
of a natural-born subject : by subjecting him to them, it imposes 
on him the condition of an alien : by conferring on you certain 
privileges or rights, which it denies to a roturier, the law con 
fers on you the condition of a gentilhomme; by forbearing to 
confer on him those privileges, it imposes on him the condition* 
of a roturier 2 . The rights, out of which the two advantageous i 
conditions here exemplified are both of them as it were com-i 
posed, have for their counterpart a sort of services of forbear; 
ance, rendered, as we have seen, not by private individuals, bui(! 
by the law itself. As to the duties which it creates in rendering J 
you these services, they are to be considered as duties imposec i> 
by the legislator on the ministers of justice. 

It may be observed, with regard to the greater part of th<| 
conditions here comprised under the general appellation of dm 
that the relations corresponding to those by which they are re 
spectively constituted, are not provided with appellatives. Th 
relation which has a name, is that which is borne by the part 
favoured to the party bound : that which is borne by the part 
bound to the party favoured has not any. This is a circuir 
stance that may help to distinguish them from those conditior 
which we have termed domestic. In the domestic conditions, 
on the one side the party to whom the power is given is called 
master ; on the other side, the party over whom that power : 

1 The reason probably why an object of the sort here in question is p 
f erred to the head of property, is, that the chief value of it arises from i 
being capable of being made a source of property in the more ordinal 
acceptations of the word ; that is, of money, consumable commodities, ar 
so forth. 

2 The conditions themselves having nothing that corresponds to them 
England, it was necessary to make use of foreign terms. 

xvi.] Division of Offences. 295 

given, the party who is the object of that power, is termed a 
servant. In the civil conditions this is not the case. On the 
one side, a man, in virtue of certain services of forbearance, 
which the rest of the community are bound to render him, is 
denominated a knight of such or such an order : but on the 
other side, these services do not bestow any particular denomi 
nation on the persons from whom such services are due. Another 
man, in virtue of the legislator s rendering that sort of negative 
service which consists in the not prohibiting him from exercising 
a trade, invests him at his option with the condition of a trader : 
it accordingly denominates him a farmer, a baker, a weaver, and 
so on : but the ministers of the law do not, in virtue of their 
rendering the man this sort of negative service, acquire for 
themselves any particular name. Suppose even that the trade 
you have the right of exercising happens to be the object of a 
monopoly, and that the legislator, besides rendering you himself 
those services which you derive from the permission he bestows 
on you, obliges other persons to render you those farther services 
which you receive from their forbearing to follow the same 
trade ; yet neither do they, in virtue of their being thus bound, 
acquire any particular name. 

After what has been said of the nature of the several sorts of 
civil conditions that have names, the offences .to which they are 
exposed may, without much difficulty, be imagined. Taken by 
itself, every condition which is thus constituted by a permission 
granted to the possessor, is of course of a beneficial nature : it 
is, therefore, exposed to all those offences to which the possession 
of a benefit is exposed. But either on account of a man s being 
obliged to persevere when once engaged in it, or on account of 
such other obligations as may stand annexed to the possession 
of it, or on account of the comparative degree of disrepute 
which may stand annexed to it by the moral sanction, it may 
by accident be a burthen : it is on this account liable to stand 
exposed to the offences to which, as hath been seen, every thing 
that partakes of the nature of a burthen stands exposed. As to 
any offences which may concern the exercise of the functions 

296 Division of Offences. [CHAP. 

belonging to it, if it happens to have any duties annexed to it, 
such as those, for instance, which are constituted by regulations 
touching the exercise of a trade, it will stand exposed to so 
many breaches of duty ; and lastly, whatsoever are the func 
tions belonging to it, it will stand exposed at any rate to 

In the forming however of the catalogue of these offences, 
exactness is of the less consequence, inasmuch as an act, if it 
should happen not to be comprised in this catalogue, and yet is I 
in any respect of a pernicious nature, will be sure to be found 
in some other division of the system of offences : if a baker sells 
bad bread for the price of good, it is a kind of fraud upon the 
buyer ; and perhaps an injury of the simple corporal kind done 
to the health of an individual, or a neighbourhood : if a clothier 
sells bad cloth for good at home, it is a fraud ; if to foreigners j 
abroad, it may, over and above the fraud put upon the foreign 
purchaser, have pernicious effects perhaps in the prosperity 
of the trade at home, and become thereby an offence against the 
national wealth. So again with regard to disturbance : if a man 
be disturbed in the exercise of his trade, the offence will pro 
bably be a wrongful interception of the profit he might be pre 
sumed to have been in a way to make by it : and were it even 
to appear in any case that a man exercised a trade, or what is 
less unlikely, a liberal profession, without having profit in his 
view, the offence will still be reducible to the head of simple 
injurious restrainment, or simple injurious compulsion. 

4. Advantages of the present method. 

of 6 th 6 e alidea kVI. A few words, for the purpose of giving a general view 
method here of the method of division here pursued, and of the advantages 

pursued. . 

which it possesses, may have their use. The whole system of 
offences, we may observe, is branched out into five classes. In ! 
the three first, the subordinate divisions are taken from the same $ 
source ; viz. from the consideration of the different points, in 
respect whereof the interest of an individual is exposed to suffer. 
By this uniformity, a considerable degree of light seems to be 

xvi.] Division of Offences. 297 

thrown upon the whole system ; particularly upon the offences 
that come under the third class : objects which have never 
therto been brought into any sort of order. With regard to 
le fourth class, in settling the precedence between its several 
ubordinate divisions, it seemed most natural and satisfactory to 
ace those first, the connection whereof with the welfare of in- 
viduals seemed most obvious andimmediate. The mischievous 
fects of those offences, which tend in an immediate way to 
prive individuals of the protection provided for them against 
ic attacks of one another, and of those which tend to bring 
own upon them the attacks of foreign assailants, seem alike 
>vious and palpable. The mischievous quality of such as tend 
weaken the force that is provided to combat those attacks, 
ut particularly the latter, though evident enough, is one link 
arther off in the chain of causes and effects. The ill effects of 
uch offences as are of disservice only by diminishing the par- 
cular fund from whence that force is to be extracted, such 
lects, I say, though indisputable, are still more distant and out 
sight. The same thing may be observed with regard to such 
s are mischievous only by affecting the universal fund . ff ences 
gainst the sovereignty in general would not be mischievous, 
offences of the several descriptions preceding were not mis- 
lievous. Nor in a temporal view are offences against religion 
dschievous, except in as far as, by removing, or weakening, or 
isapplying one of the three great incentives to virtue, and 
leeks to vice, they tend to open the door to the several mis- 
liefs, which it is the nature of all those other offences to pro- 
iice. As to the fifth class, this, as hath already been observed, 
fl :hibits, at first view, an irregularity, which however seems to 
jjjj unavoidable. But this irregularity is presently corrected, 
{ lien the analysis returns back, as it does after a step or two, 
In to the path from which the tyranny of language had forced 
j, a while to deviate. 

jj It was necessary that it should have two purposes in view : 
el e one, to exhibit, upon a scale more or less minute, a syste- 
Ijj. itical enumeration of the several possible modifications of 

398 Division of Offences. [CHAP 

delinquency, denominated or undenominated ; the other, to fine 
places in the list for such names of offences as were in curren 
use : for the first purpose, nature was to set the law ; for th 
other, custom. Had the nature of the things themselves beei 
the only guide, every such difference in the manner of perpetra 
tion, and such only, should have served as a ground for a differen 
denomination, as was attended with a difference in point of eff eel 
This however of itself would never have been sufficient ; for a 
on one hand the new language, which it would have been neces 
sary to invent, would have been uncouth, and in a manner unir 
telligible : so on the other hand the names, which were befoi 
in current use, and which, in spite of all systems, good or ba< 
must have remained in current use, would have continued une: 
plained. To have adhered exclusively to the current languag 
would have been as bad on the other side ; for in that case tlj 
catalogue of offences, when compared to that of the mischie i 
that are capable of being produced, would have been altogethi i 
broken and uncomplete. 

To reconcile these two objects, in as far as they seemed to 1 
reconcilable, the following course has therefore been pursue < 
The logical whole, constituted by the sum total of possible offence -\ 
has been bisected in as many different directions as were nece - 
sary, and the process in each direction carried down to th ^ 
stage at which the particular ideas thus divided found names i 
current use in readiness to receive them. At that period I ha s ; 
stopped ; leaving any minuter distinctions to be enumerated , j 
the body of the work, as so many species of the genus character 
ised by such or such a name. If in the course of any sutj 
process I came to a mode of conduct which, though it required it 
be taken notice of, and perhaps had actually been taken noti) 1 
of, under all laws, in the character of an offence, had hither) 
been expressed under different laws, by different circumlocution 
without ever having received any name capable of occupying tJ 
place of a substantive in a sentence, I have frequently ventuil 
so far as to fabricate a new name for it, such an one as the idid 
of the language, and the acquaintance I happened to have wfc 

xvi.] Division of Offences. 299 

it, would admit of. These names consisting in most instances, 
and that unavoidably, of two or three words brought together, 
in a language too which admits not, like the German and the 
Greek, of their being melted into one, can never be upon a par, 
in point of commodiousness, with those univocal appellatives 
i which make part of the established stock. 

In the choice of names in current use, care has been taken to 
(avoid all such as have been grounded on local distinctions, ill 
i founded perhaps in the nation in which they received their 
i birth, and at any rate not applicable to the circumstances of 
other countries. 

The analysis, as far as it goes, is as applicable to the legal con- 
! cerns of one country as of another : and where, if it had descended 
; into further details, it would have ceased to be so, there I have 
taken care always to stop : and thence it is that it has come to 
ibe so much more particular in the class of offences against indi- 
jjviduals, than in any of the other classes. One use then of this 
| arrangement, if it should be found to have been properly con- 
lllucted, will be its serving to point out in what it is that the 
Uiegal interests of all countries agree, and in what it is that they 
jure liable to differ : how far a rule that is proper for one, will 
i serve, and how far it will not serve, for another. That the legal 
interests of different ages and countries have no thing in common, 
ind that they have every thing, are suppositions equally distant 
from the truth l . 

LVII. A natural method, such as it hath been here attempted its advan- 
;o exhibit, seems to possess four capital advantages ; not to men- -if it is 
iion others of inferior note. In the first place, it affords such foTtheap 
Assistance to the apprehension and to the memory, as those facul- and^ 
ies would in vain look for in any technical arrangement 2 . That memory< 
Arrangement of the objects of any science may, it should seem, 

1 The above hints are offered to the consideration of the few who may 
e disposed to bend their minds to disquisitions of this uninviting nature : 

: o sift the matter to the bottom, and engage in the details of illustration, 
rould require more room than could in this place be consistently allowed. 
See Fragment on Government, pref. p. xlv. edit. 1776. pref. p. xlvii. 
tilt. 1823. 

300 Division of Offences. [CHAP, 

be termed a natural one, which takes such properties to charac* 
terise them by, as men in general are, by the common constitu 
tion of man s nature, independently of any accidental impressions 
they may have received from the influence of any local or othei 
particular causes, accustomed to attend to : such, in a word, at 
naturally, that is readily and at first sight, engage, and firmli 
fix, the attention of any one to whom they have once beei 
pointed out. Now by what other means should an object engag 
or fix a man s attention, unless by interesting him ? and wha 
circumstance belonging to any action can be more interesting 
or rather what other circumstance belonging to it can be at al 
interesting to him, than that of the influence it promises to hav 
on his own happiness, and the happiness of those who are abou 
him ? By what other mark then should he more easily find th \ 
place which any offence occupies in the system, or by what othe 
clue should he more readily recall it ? 

-2. it gives LVIII. In the next place, it not only gives at first glance 
general pro- general intimation of the nature of each division of offences, i 
as far as that nature is determined by some one characteristi 
property, but it gives room for a number of general propositior i 
to be formed concerning the particular offences that come undf j 
that division, in such manner as to exhibit a variety of othel 
properties that may b elong to them in common . It gives roon j 
therefore, for the framing of a number of propositions conceni 
ing them, which, though very general, because predicated of 1 
great number of articles, shall be as generally true 1 . 

1 Imagine what a condition a science must be in, when as yet there shs 5 
be no such thing as forming any extensive proposition relative to it, th, I 
shall be at the same time a true one : where, if the proposition shall 1 { 
true of some of the particulars contained under it, it shall be false wi fr 
regard to others. What a state would botany, for example, be in, if t) 
classes were so contrived, that no common characters could be found f jm 
them? Yet in this state, and no better, seems every system of penal la . 
to be, authoritative or unauthoritative, that has ever yet appeared. Try 
it be otherwise, for instance, with the delicta private, et publica, and wi 
the publica ordinaria, and publica extra-ordinaria of the Roman law 
All this for want of method : and hence the necessity of endeavouring 
strike out a new one. 

1 See Heinecc, Elem. p. vii. 79, 80. 

LVI.] Division of Offences. 301 

LIX. In the third place, it is so contrived, that the very place s. it points 

, . , rt. . , , out the 

hich any offence is made to occupy, suggests the reason of its reason of the 
eing put there. It serves to indicate not only that such and such a> 
acts are made offences, but why they ought to be. By this means, 
hile it addresses itself to the understanding, it recommends itself 
n some measure to the affections. By the intimation it gives of 
;he nature and tendency of each obnoxious act, it accounts for, 
nd in some measure vindicates, the treatment which it may be 
bought proper to bestow upon that act in the way of punish- 
i|nent. To the subject then it is a kind of perpetual apology : 
owing the necessity of every defalcation, which, for the se- 
ity and prosperity of each individual, it is requisite to make 
IJTom the liberty of every other. To the legislator it is a kind 
)f perpetual lesson : serving at once as a corrective to his pre- 
udices, and as a check upon his passions. Is there a mischief 
livhich has escaped him ? in a natural arrangement, if at the 
jjiame time an exhaustive one, he cannot fail to find it. Is he 
tempted ever to force innocence within the pale of guilt ? the 
lifficulty of finding a place for it advertises him of his error. 
>uch are the uses of a map of universal delinquency, laid down 
tSipon the principle of utility : such the advantages, which the 
legislator as well as the subject may derive from it. Abide by 
Jb, and every thing that is arbitrary in legislation vanishes. An 
vil-intentioned or prejudiced legislator durst not look it in the 
; (ace. He would proscribe it, and with reason : it would be a 
atire on his laws. 

LX. In the fourth place, a natural arrangement, governed as -4. it is 
. , ..,,.,. T -, ,-, -11 alike appli- 

is by a principle which is recognised by all men, will serve cable to the 

Nor is this want of method to be wondered at. A science so new as 
iat of penal legislation, could hardly have been in any better state. Till 
objects are distinguished, they cannot be arranged. It is thus that truth 
1 ad order go on hand in hand. It is only in proportion as the former is 
iscovered, that the latter can be improved. Before a certain order is 
?tablished, truth can be but imperfectly announced : but until a certain 
roportion of truth has been developed and brought to light, that order 
mnot be established. The discovery of truth leads to the establishment 
E order : and the establishment of order fixes and propagates the discovery 
t truth. 

3<D2 Division of Offences. [CHAP. 

laws of ail alike for the jurisprudence of all nations. In a system of pro 
posed law, framed in pursuance of such a method, the language 
will serve as a glossary by which all systems of positive law 
might be explained, while the matter serves as a standard by 
which they might be tried. Thus illustrated, the practice ol 
every nation might be a lesson to every other : and mankind 
might carry on a mutual interchange of experiences and im 
provements as easily in this as in every other walk of science. Ij 
any one of these objects should in any degree be attained, th( 
labour of this analysis, severe as it has been, will not have beer 
thrown away. 

5. Characters of the five classes. 

Characters LXI. It has been mentioned 1 as an advantage possessed fr 
classes, how this method, and not possessed by any other, that the object 
from the 6 comprised under it are cast into groups, to which a variety o 
method. propositions may be applied in common. A collection of thes 
propositions, as applied to the several classes, may be considere 
as exhibiting the distinctive characters of each class. So man 
of these propositions as can be applied to the offences belongin 
to any given class, so many properties are they found to hav 
in common : so many of these common properties as ma 
respectively be attributed to them, so many properties may 1 
set down to serve as characters of the class. A collection < 
these characters it may here be proper to exhibit. The more < 
them we can bring together, the more clearly and fully will tl 
nature of the several classes, and of the offences they are cor 
posed of, be understood. 

Characters LXII. Characters of Class I ; composed of PRIVATE offence 
or offences against assignable individuals. 

1. When arrived at their last stage (the stage of consumm 
tion 2 ) they produce, all of them, a primary mischief as w. 
as a secondary 3 . 

2. The individuals whom they affect in the first instanc 1 

1 Supra, Iviii. 2 Ch. vii. [Actions] xiv. 

3 See ch. xii. [Consequences] iii. 4 That is, by their primary mischi. 

xvi.] Division of Offences. 303 

are constantly assignable. This extends to all ; to attempts and 
preparations, as well as to such as have arrived at the stage of 
consummation 1 . 

3. Consequently they admit of compensation 2 : in which they 
differ from the offences of all the other classes, as such. 

4. They admit 3 also of retaliation*; in which also they 
differ from the offences of all the other classes. 

5. There is always some person who has a natural and pe- 
juliar interest to prosecute them. In this they differ from 
elf-regarding offences : also from semi-public and public ones ; 
jxcept in as far as the two latter may chance to involve a private 

6. The mischief they produce is obvious : more so than that 
>f semi-public offences : and still more so than that of self- 
egarding ones, or even public. 

7. They are every where, and must ever be, obnoxious to the 
ensure of the world : more so than semi-public offences as such; 
nd still more so than public ones. 

8. They are more constantly obnoxious to the" censure of the 
rorld than self -regarding offences : and would be so universally, 
rere it not for the influence of the two false principles ; the 
rinciple of asceticism, and the principle of antipathy 5 . 

9. They are less apt than semi-public and public offences to 
squire different descriptions 6 in different states and countries : 
* which respect they are much upon a par with self -regarding 


10. By certain circumstances of aggravation, they are liable 

1 See supra, xxxi note, and B. I. tit. [Accessory offences]. 

8 See ch. xiii. [Cases unmeet] ii. note. 

8 I mean, that retaliation is capable of being applied in the cases in 
ijestion ; not that it ought always to be employed. Nor is it capable of 
1 ing applied in every individual instance of each offence, but only in some 
j dividual instance of each species of offence. 

* See ch. xv. [Properties] viii. 

* Ch. ii. [Principles adverse]. 

* It seems to be from their possessing these three last properties, that 
e custom has arisen of speaking of them, or at least of many of them, 
ider the name of offences against the law of nature : a vague expression^ 
id productive of a multitude of inconveniences. See ch. ii. [Principles 

; Averse] xiv. note. 

34 Division of Offences. [CIIAP ; 

to be transformed into semi-public offences ; and by certain 
others, into public. 

11. There can be no ground for punishing them, until the} 
can be proved to have occasioned, or to be about to occasion 
some particular mischief to some particular individual. In this 
they differ from semi-public offences, and from public. 

12. In slight cases, compensation given to the individua 
affected by them may be a sufficient ground for remitting 
punishment : for if the primary mischief has not been sufficieni 
to produce any alarm, the whole of the mischief may be curer 
by compensation. In this also they differ from semi-publi 
offences, and from public ones. 

S class? 8 LXIII. Characters of Class 2 ; composed of SEMI-PUBLIC 
offences, or offences affecting a whole subordinate class o:; 

1. As such, they produce no primary mischief. The mischid 
they produce consists of one or other or both branches of th t 
secondary mischief produced by offences against individuals ,j 
without the primary. 

2. In as far as they are to be considered as belonging to thi 
class, the persons whom they affect in the first instance are no 
individually assignable. 

3. They are apt, however, to involve or terminate in 
primary mischief of the first order ; which when they do, the] 
advance into the first class, and become private offences. 

4. They admit not, as such, of compensation. 

5. Nor of retaliation. 

6. As such, there is never any one particular individual who; 
exclusive interest it is to prosecute them : a circle of person 
may, however, always be marked out, within which may ij 
found some who have a greater interest to prosecute than ai 
who are out of that circle have. 

7. The mischief they produce is in general pretty obvioui 
not so much so indeed as that of private offences, but mo 
so upon the whole than that of self -regarding and public ont 

8. They are rather less obnoxious to the censure of the woi. 

xvi.] Division of Offences. 305 

than private offences ; but they are more so than public ones : 
they would also be more so than self-regarding ones, were it not 
for the influence of the two false principles, the principle of 
sympathy and antipathy, and that of asceticism. 

9. They are more apt than private and self -regarding offences 
to require different descriptions in different countries : but less 
so than public ones. 

10. There maybegroundfor punishing them before they have 
been proved to have occasioned, or to be about to occasion, mis 
chief to any particular individual ; which is not the case with 
private offences. 

11. In no cases can satisfaction given to any particular indi 
vidual affected by them be a sufficient ground for remitting 
punishment : for by such satisfaction it is but a part of the 
Itnischief of them that is cured. In this they differ from private 
pffences ; but agree with public. 

LXIV. Characters of Class 3 ; consisting of SELF REGARDING characters 
offences : offences against one s self. 

I. In individual instances it will often be questionable, 
whether they are productive of any primary l mischief at all : 
iiecondary, they produce none. 

| 2. They affect not any other individuals, assignable or not 
Assignable, except in as far as they affect the offender himself ; 
nnless by possibility in particular cases ; and in a very slight 
jmd distant manner the whole state. 
I 3. They admit not, therefore, of compensation. 
< 4. Nor of retaliation. 

5. No person has naturally any peculiar interest to prosecute 

hem : except in as far as in virtue of some connection he may 

tave with the offender, either in point of sympathy or of interest 2 , 

t . mischief of the derivative kind 3 may happen to devolve upon 


1 Because the person, who in general is most likely to be sensible to the 
nischief (if there is any) of any offence, viz. the person whom it most 
, ( fleets, shows by his conduct that he is not sensible of it. 

2 See ch. vi. [Sensibility] xxv. xxvi. 3 See ch. xii. [Consequences] iv. 
I Among the offences, however, which belong to this class there are 


306 Division of Offences. [CHAP. 

6. The mischief they produce is apt to be unobvious and in 
general more questionable than that of any of the other classes 1 . 

7. They are however apt, many of them, to be more obnoxious 
to the censure of the world than public offences ; owing to the 
influence of the two false principles ; the principle of asceticism, 
and the principle of antipathy. Some of them more even than 
semi-public, or even than private offence 

8. They are less apt than offences of any other class to require 
different descriptions in different states and countries 2 . 

9. Among the inducements 3 to punish them, antipathy 
against the offender is apt to have a greater share thar 
sympathy for the public. 

10. The best plea for punishing them is founded on a fain 1 
probability there may be of their being productive of a mischief 
which, if real, will place them in the class of public ones : chiefly 
in those divisions of it which are composed of offences agains 
population, and offences against the national wealth. 

Characters LXV. Characters of Class 4 ; consisting of PUBLIC offences, o 

ofClassi. . . ,7 1 

offences against the state in general. 

1. As such, they produce not any primary mischief ; and th j 
secondary mischief they produce, which consists frequently c j 
danger without alarm, though great in value, is in specie ver ; 

2. The individuals whom they affect, in the first instance, ai < 
constantly unassignable ; except in as far as by accident the 
happen to involve or terminate in such or such offences again; I 

3. Consequently they admit not of compensation. 

4. Nor of retaliation. 

some which in certain countries it is not uncommon for persons to be d 
posed to prosecute without any artificial inducement, and merely on accou 
of an antipathy, which such acts are apt to excite. See ch. ii. [Principj 
adverse] xi. 

1 See note i in the preceding page. 

2 Accordingly, most of them are apt to be ranked among offences agair ; 
the law of nature. Vide supra, Characters of the ist class, Ixii. note. 

3 I mean the considerations, right or wrong, which induce or dispose 
legislator to treat them on the footing of offences. 

xvi.] Division of Offences. 307 

5. Nor is there any person who has naturally any particular 
interest to prosecute them ; except in as far as they appear to 
affect the power, or in any other manner the private interest, of 
some person in authority. 

6. The mischief they produce, as such, is comparatively un- 
obvious ; much more so than that of private offences, and more 
so likewise, than that of semi-public ones. 

7. They are, as such, much less obnoxious to the censure of 
the world, than private offences ; less even than semi-public, or 
even than self-regarding offences ; unless in particular cases, 
through sympathy to certain persons in authority, whose 
private interests they may appear to affect. 

8. They are more apt than any of the other classes to admit 
of different descriptions, in different states and countries. 

9. They are constituted, in many cases, by some circumstances 
of aggravation superadded to a private offence : and therefore, 
in these cases, involve the mischief and exhibit the other cha 
racters belonging to both classes. They are however, even in 
such cases, properly enough ranked in the 4th class, inasmuch 
as the mischief they produce in virtue of the properties which 
aggregate them to that class, eclipses and swallows up that which 
they produce in virtue of those properties which aggregate them 
to the 1st. 

10. There may be sufficient ground for punishing them, with 
out their being proved to have occasioned, or to be about to 

i, occasion, any particular mischief to any particular individual. 
In this they differ from private offences, but agree with semi- 
public ones. Here, as in semi-public offences, the extent of the 
mischief makes up for the uncertainty of it. 

11. In no case can satisfaction, given to any particular indi- 
*& vidual affected by them, be a sufficient ground for remitting 
:[ punishment. In this they differ from private offences ; but agree 

with semi-public. 

, ail | LXVI. Characters of Class 5, or appendix : composed of MUL- characters 
TiFORMor ANOMALOUS offences ; and containing offences by 
FALSEHOOD, and offences concerning TRUST. 
x 2 

30 8 Division of Offences. 

1. Taken collectively, in the parcels marked out by their 
popular appellations, they are incapable of being aggregated to 
any systematical method of distribution, grounded upon the 
mischief of the offence. 

2. They may, however, be thrown into sub -divisions, which 
may be aggregated to such a method of distribution. 

3. These sub -divisions will naturally and readily rank under 
the divisions of the several preceding classes of this system. 

4. Each of the two great divisions of this class spreads itself 
in that manner over all the preceding classes. 

5. In some acts of this class, the distinguishing circumstance 
which constitutes the essential character of the offence, will in 
some instances enter necessarily, in the character of a criminative 
circumstance, into the constitution of the offence ; insomuch that, 
without the intervention of this circumstance, no offence at all, 
of that denomination, can be committed 1 . In other instances, 
the offence may subsist without it ; and where it interferes, it 
comes in as an accidental independent circumstance, capable of 
constituting a ground of aggravation 2 . 

1 Instance, offences by falsehood, in the case of defraudment. 

2 Instance, offences by falsehood, in the case of simple corporal injuries, 
and other offences against person. 



I. Limits between Private Ethics and the Art of Legislation. 

I. So much for the division of offences in general. Now an use of this 
offence is an act prohibited, or (what comes to the same thing) 
an act of which the contrary is commanded, by the law : and 
what is it that the law can be employed in doing, besides pro 
hibiting and commanding ? It should seem then, according to 
this view of the matter, that were we to have settled what may 
be proper to be done with relation to offences, we should thereby 
have settled every thing that may be proper to be done in the 
way of law. Yet that branch which concerns the method of deal 
ing with offences, and which is termed sometimes the criminal, 
sometimes the penal, branch, is universally understood to be but 
one out of two branches which compose the whole subject of the 
art of legislation ; that which is termed the civil being the 
other 1 . Between these two branches then, it is evident enough, 
there cannot but be a very intimate connection ; so intimate is 
it indeed, that the limits between them are by no means easy to 
mark out. The case is the same in some degree between the 
whole business of legislation (civil and penal branches taken 
together) and that of private ethics. Of these several limits 

1 And the constitutional branch, what is become of it? Such is the ques 
tion which many a reader will be apt to put. An answer that might be 
given is that the matter of it might without much violence be distributed 
under the two other heads. But, as far as recollection serves, that branch, 
notwithstanding its importance, and its capacity of being lodged separately 
from the other matter, had at that time scarcelypresented itself to my view 
in the character of a distinct one : the thread of my enquiries had not as 
yet reached it. But in the concluding note of this same chapter, in para 
graphs xxii. to the end, the omission may be seen in some measure supplied. 

310 Of the Limits of the [CHAP. 

however it will be in a manner necessary to exhibit some idea : 
lest, on the one hand, we should seem to leave any part of the 
subject that does belong to us untouched, or, on the other hand, 
to deviate on any side into a track which does not belong to us. 
In the course of this enquiry, that part of it I mean which 
concerns the limits between the civil and the penal branch of 
law, it will be necessary to settle a number of points, of which 
the connection with the main question might not at first sight 
be suspected. To ascertain what sort of a thing a law is ; what 
the parts are that are to be found in it ; what it must contain 
in order to be complete ; what the connection is between that 
part of a body of laws which belongs to the subject of procedure 
and the rest of the law at large : all these, it will be seen, are 
so many problems, which must be solved before any satisfactory 
answer can be given to the main question above mentioned. 

Nor is this their only use : for it is evident enough, that the 
notion of a complete law must first be fixed, before the legislator 
can in any case know what it is he has to do, or when his work 
is done. 

Ethics in II. Ethics at large may be defined, the art of directing men s 

^ e imt, a actions to the production of the greatest possible quantity of 
happiness, on the part of those whose interest is in view. 

Private III. What then are the actions which it can be in a man s 

power to direct ? They must be either his own actions, or those 
of other agents. Ethics, in as far as it is the art of directing a 
man s own actions, may be styled the art of self-government, 01 
private ethics. 

The art of IV. What other agents then are there, which, at the sanit 

government: . ., n . n , , ,. , . 

that is, of time that they are under the influence ot man s direction, art 
and admin- susceptible of happiness ? They are of two sorts : i. Othe] 
human beings who are styled persons. 2. Other animals, which 
on account of their interests having been neglected by the in 
sensibility of the ancient jurists, stand degraded into the class o 
things l . As to other human beings, the art of directing thei 

interests of the i Under the Gentoo and Mahometan religions, the interests of the res 
improper" 315 of the animal creation seem to have met with some attention. Wh 

xvii.] Penal Branch of Jurisprudence. 311 

actions to the above end is what we mean, or at least the only 
thing which, upon the principle of utility, we ought to mean, by 
the art of government : which, in as far as the measures it dis 
plays itself in are of a permanent nature, is generally distin 
guished by the name of legislation : as it is by that of adminis 
tration, when they are of a t mporary nature, determined by the 
occurrences of the day. 

V. Now human creatures, considered with respect to the ma- Art of edu- 
turity of their faculties, are either in an adult, or in a non-adult^ 
state. The art of government, in as far as it concerns the 
direction of the actions of persons in a non-adult state, may be 

have they not, universally, with as much as those of human creatures, neglected m 
allowance made for the difference in point of sensibility? Because the le s lslatlon - 
laws that are have been the work of mutual fear ; a sentiment which the 
less rational animals have not had the same means as man has of turning 
to account. Why ought they not ? No reason can be given. If the being 
eaten were all, there is very good reason why we should be suffered to eat 
; such of them as we like to eat : we are the better for it, and they are never 
j the worse. They have none of those long-protracted anticipations of future 

being killed were all, there is very good reason why we should be suffered 
S to kill such as molest us : we should be the worse for their living, and they 
I are never the worse for being dead. But is there any reason why we 

should be suffered to torment them ? Not any that I can see. Are there 

any why we should not be suffered to torment them ? Yes, several. See 
< B. I. tit. [Cruelty to animals]. The day has been, I grieve to say in many 

places it is not yet past, in which the greater part of the species, under 
3 the denomination of slaves, have been treated by the law exactly upon the 
l same footing as, in England for example, the inferior races of animals are 

still. The day may come, when the rest of the animal creation may ao- 
o: quire those rights which never could have been withholden from them but 

by the hand of tyranny. The French have already discovered that the 

blackness of the skin is no reason why a human being should be abandoned 
ltf without redress to the caprice of a tormentor 1 . It may come one day to be 
jit recognized, that the number of the legs, the villosity of the skin, or the 

termination of the os sacrum, are reasons equally insufficient for abandon- 
" { .ng a sensitive being to the same fate. What else is it that should trace 
d ^he insuperable line ? Is it the faculty of reason, or, perhaps, the faculty 
. )f discourse ? But a full-grown horse or dog is beyond comparison a more 
-ational, as well as a more conversable animal, than an infant of a day, or 
, ;( i week, or even a month, old. But suppose the case were otherwise, what 

tfould it avail ? the question is not, Can they reason? nor, Can they taikf 
"* nit, Can they suffer! 

># See Lewis XlVtU s Code Noir. 


312 Of the Limits of the [CHAP. 

termed the art of education. In as far as this business is entrusted 
with those who, in virtue of some private relationship, are in the 
main the best disposed to take upon them, and the best able to 
discharge, this office, it may be termed the art of private educa 
tion : in as far as it is exercised by those whose province it is to 
superintend the conduct of the whole community, it may be 
termed the art of public education. 

Ethics cxhi- VI. As to ethics in general, a man s happiness will depend, 
rules of, in the first place, upon such parts of his behaviour as none but 
2. Probity? 6 himself are interested in ; in the next place, upon such parts of 
cence? 6 ^ as may affect the happiness of those about him. In as far as 
his happiness depends upon the first-mentioned part of his be 
haviour, it is said to depend upon his duty to himself. Ethics 
then, in as far as it is the art of directing a man s actions in this 
respect, may be termed the art of discharging one s duty to one s 
self : and the quality which a man manifests by the discharge ol 
this branch of duty (if duty it is to be called) is that of prudence. 
In as far as his happiness, and that of any other person or per 
sons whose interests are considered, depends upon such parts oi 
his behaviour as may affect the interests of those about him, il 
may be said to depend upon his duty to others ; or, to use a 
phrase now somewhat antiquated, his duty to his neighbour \ 
Ethics then, in as far as it is the art of directing a man s actions >, 
in this respect, may be termed the art of discharging one s dut) 
to one s neighbour. Now the happiness of one s neighbour maj 
be consulted in two ways : I. In a negative way, by forbearing 
to diminish it. 2. In a positive way, by studying to increase it 
A man s duty to his neighbour is accordingly partly negativJ 
and partly positive : to discharge the negative branch of it, i 
probity : to discharge the positive branch, beneficence. 
Probity and VII. It may here be asked, How it is that upon the prin 
how e they Ce cipleof private ethics, legislation and religion out of the questior 
prudence? th a man s happiness depends upon such parts of his conduct a 
affect, immediately at least, the happiness of no one but himself 
this is as much as to ask, What motives (independent of such a 
legislation and religion may chance to furnish) can one man hav 

xvii.] Penal BrancJi, of Jurisprudence. 313 

to consult the happiness of another ? by what motives, or, which 
comes to the same thing, by what obligations, canhebe bound to 
obey the dictates of probity and beneficence ? In answer to this, 
it cannot but be admitted, that the only interests which a man 
[ at all times and upon all occasions is sure to find adequate mo 
tives for consulting, are his own. Notwithstanding this, there 
are no occasions in which a man has not some motives for con 
sulting the happiness of other men. In the first place, he has, 
on all occasions, the purely social motive of sympathy or benevo 
lence : in the next place, he has, on most occasions, the semi- 
social motives of love of amity and love of reputation. The mo- 
ative of sympathy will act upon him with more or less effect, 
jaccording to the bias of his sensibility 1 : the two other motives, 
according to a variety of circumstances, principally according to 
the strength of his intellectual powers, the firmness and steadi- 
: ness of his mind, the quantum of his moral sensibility, and the 
characters of the people he has to deal with. 
i VIII. Now private ethics has happiness for its end : and legis- Every act 

, which is a 

i ation can have no other. Private ethics concerns every member, proper ob- 

1 . -. -i ject of ethics 

r ;nat is, the happiness and the actions ot every member, 01 any i s not of 

, , . , , . legislation, 

i ;ommumty that can be proposed ; and legislation can concern 

ir !io more. Thus far, then, private ethics and the art of legisla- 
11 ion go hand in hand. The end they have, or ought to have, in 
t dew, is of the same nature. The persons whose happiness they 
a iught to have in view, as also the persons whose conduct they 
D. oight to be occupied in directing, are precisely the same. The 
i: ery acts they ought to be conversant about, are even in a great 
iv measure the same. Where then lies the difference ? In that the 
i cts which they ought to be conversant about, though in a great 
leasure, are not perfectly and throughout the same. There is 
tit o case in which a private man ought not to direct his own con- 
iot uct to the production of his own happiness, and of that of his 
ta illow-creatures : but there are cases in which the legislator 
jeli ught not (in a direct way at least, and by means of punishment 
jjs: pplied immediately to particular individual acts) to attempt to 
litf- J Ch. vi. [Sensibility] iii. 

314 Of the Limits of the [CHAP. 

direct the conduct of the several other members of the commu 
nity. Every act which promises to be beneficial upon the whole 
to the community (himself included) each individual ought to 
perform of himself : but it is not every such act that the legis 
lator ought to compel him to perform. Every act which promises 
to be pernicious upon the whole to the community (himself in 
cluded) each individual ought to abstain from of himself : but it 
is not every such act that the legislator ought to compel him to 
abstain from. 
The limits IX. Where then is the line to be drawn ? We shall not have 

between the , . , . _., , ... . , , , , 

provinces of far to seek for it. The business is to give an idea of the cases 
eSJcsand in which ethics ought, and in which legislation ought not (in a 
mlrkedou t direct manner at least) to interfere. If legislation interferes in 

a direct manner, it must be by punishment \ Now the cases ID 
punishment. W j 1 c j 1 p un i snme nt, meaning the punishment of the political i 
sanction, ought not to be inflicted, have been already stated 2 
If then there be any of these cases in which, although legislatioi 
ought not, private ethics does or ought to interfere, these case! 
will serve to point out the limits between the two arts or branch. 
of science. These cases, it may be remembered, are of four sorts 
I. Where punishment would be groundless. 2. Where it woul< 
be inefficacious. 3. Where it would be unprofitable. 4. Wher 
it would be needless. Let us look over all these cases, and se 
whether in any of them there is room for the interference c 
private ethics, at the same time that there is none for the direc 
interference of legislation. 

i. Neither X. I. First then, as to the cases where punishment woul 
p\y where*" be groundless. In these cases it is evident, that the restricti\ 
. interference of ethics would be groundless too. It is becaus< 
upon the whole, there is no evil in the act, that legislation ougl 
not to endeavour to prevent it. No more, for the same reaso: 
ought private ethics. 

1 I say nothing in this place of reward : because it is only in a ft 
extraordinary cases that it can be applied, and because even where it 
applied, it may be doubted perhaps whether the application of it can, pi 
perly speaking, be termed an act of legislation. See infra, 3. 

2 Ch. xiii. [Cases unmeet]. 

JLVII.] Penal Branch of Jurisprudence. 315 

XI. 2. As to the cases in which punishment would be ineffi- 2. How far 
Mcious. These, we may observe, may be divided into two sets ?Es can 
)r classes. The first do not depend at all upon the nature cases where 


)f the act : they turn only upon a defect in the timing of 

ounishment. The punishment in question is no more than what, 
j for any thing that appears, ought to have been applied to the 
i iict in question. It ought, however, to have been applied at a 

lifferent time ; viz. not till after it had been properly denounced. 

These are the cases of an ex-post-facto law ; of a judicial sen- 
i| jence beyond the law ; and of a law not sufficiently promulgated. 
"he acts here in question then might, for anything that appears, 
ome properly under the department even of coercive legislation : 
^ f course do they under that of private ethics. As to the other set 
[ f cases, in which punishment would be inefficacious ; neither do 
1 hese depend upon the nature of the act, that is, of the sort of 
^ ct : they turn only upon some extraneous circumstances, with 

fell an act of any sort may chance to be accompanied. These, 
s owever, are of such a nature as not only to exclude the appli- 
ft ition of legal punishment, but in general to leave little room 
G >r the influence of private ethics. These are the cases where 

1 le will could not be deterred from any act, even by the extra - 
^ rdinary force of artificial punishment : as in the cases of ex- 
-erne infancy, insanity, and perfect intoxication : of course, 
- lerefore, it could not by such slender and precarious force as 
K raid be applied by private ethics. The case is in this respect 

le same, under the circumstances of unintentionally with re 
ject to the event of the action, unconsciousness with regard to 
ie circumstances, and mis-supposal with regard to the existence 
$ circumstances which have not existed ; as also where the 

rce, even of extraordinary punishment, is rendered inoperative 
& 7 the superior force of a physical danger or threatened mis- 

tief. It is evident, that in these cases, if the thunders of the 
, w prove impotent, the whispers of simple morality can have 
> re i it little influence. 

XII. 3. As to the cases where punishment would be unprO ^** 

, rile. These are the cases which constitute the great field for would be u- 

31 6 Of the Limits of the [CHAP, 

the exclusive interference of private ethics. When a punish 
ment is unprofitable, or in other words too expensive, it ii 
because the evil of the punishment exceeds that of the offence 
Now the evil of the punishment, we may remember \ is distin 
guishable into four branches : I. The evil of coercion, includinj 
constraint or restraint, according as the act commanded is of th 
positive kind or the negative. 2. The evil of apprehensior 
3. The evil of sufferance. 4. The derivative evils resulting t 
persons in connection with those by whom the three above-mer 
tioned original evils are sustained. Now with respect to thos 
original evils, the persons who lie exposed to them may be tw 
very different sets of persons. In the first place, persons wb 
may have actually committed, or been prompted to commit, tl; 
acts really meant to be prohibited. In the next place, pe, 
sons who may have performed, or been prompted to perforr 
such other acts as they fear may be in danger of being involve ^i 
in the punishment designed only for the "former. But of the;: 
two sets of acts, it is the former only that are pernicious : it i 
therefore, the former only that it can be the business of priva i 
ethics to endeavour to prevent. The latter being by the sur 
position not mischievous, to prevent them is what it can , 
more be the business of ethics to endeavour at, than of legisl. 
tion. It remains to show how it may happen, that there shout 
be acts really pernicious, which, although they may very pi- 
perly come under the censure of private ethics, may yet be : 
fit objects for the legislator to control. 

Which it XIII. Punishment then, as applied to delinquency, may I 

Aiti?ough unprofitable in both or either of two ways : I. By the expert 

the gulfty? it would amount to, even supposing the application of it to e 

confined altogether to delinquency : 2. By the danger there rcf 

be of its involving the innocent in the fate designed only for ^ 

guilty. First then, with regard to the cases in which the <: 

pense of the punishment, as applied to the guilty, would o h 

weigh the profit to be made by it. These cases, it is evidefc, 

depend upon a certain proportion between the evil of ie 

1 See ch. xiii. [Cases unmeet], iv. 

xvii.] Penal Branch of Jurisprudence. 317 

punishment and the evil of the offence. Now were the offence of 
such a nature, that a punishment which, in point of magnitude, 
ihould but just exceed the profit of it, would be sufficient to 
srevent it, it might be rather difficult perhaps to find an in 
stance in which such punishment would clearly appear to be 
mprofitable. But the fact is, there are many cases in which a 
. jnmishment, in order to have any chance of being efficacious, 
: jnust, in point of magnitude, be raised a great deal above that 
i level. Thus it is, wherever the danger of detection is, or, what 
t lomes to the same thing, is likely to appear to be, so small, as 
f o make the punishment appear in a high degree uncertain. In 
: this case it is necessary, as has been shown \ if punishment be 
i it all applied, to raise it in point of magnitude as much as it 
* ills short in point of certainty. It is evident, however, that all 
n ais can be but guess-work : and that the effect of such a pro- 
ortion will be rendered precarious, by a variety of circum- 
ances : by the want of sufficient promulgation on the part of 
le law 2 : by the particular circumstances of the temptation 3 : 
id by the circumstances influencing the sensibility of the 
veral individuals who are exposed to it 4 . Let the seducing 
otives be strong, the offence then will at any rate be frequently 
mmitted. Now and then indeed, owing to a coincidence of 
101 rcumstances more or less extraordinary, it will be detected, 
p: id by that means punished. But for the purpose of example, 
lie hich is the principal one, an act of punishment, considered in 
self, is of no use : what use it can be of, depends altogether 
A >on the expectation it raises of similar punishment, in future 
vge i <ses of similar delinquency. But this future punishment, it is 
i ident, must always depend upon detection. If then the want 
rejl detection is such as must in general (especially to eyes fasci- 
ii : ted by the force of the seducing motives) appear too impro 
ve ble to be reckoned upon, the punishment, though it should be 
jiilicted, may come to be of no use. Here then will be two 
vl( j,< posite evils running on at the same time, yet neither of them 

ij Ch. xiv. [Proportion] xviii. Rule 7. 

Ch. xiii. [Cases unmeet] iii. Append tit. [Promulgation]. 
Ch. xi. [Disposition] xxxv. &o. * Ch. vi. [Sensibility]. 

gi 8 Of the Limits of the [CHAP 

reducing the quantum of the other : the evil of the disease anc 
the evil of the painful and inefficacious remedy. It seems to b< 
partly owing to some such considerations, that fornication, foi 
example, or the illicit commerce between the sexes, has com 
monly either gone altogether unpunished, or been punished in : 
degree inferior to that in which, on other accounts, legislator 
might have been disposed to punish it. 

2. By en- XIV. Secondly, with regard to the cases in which politic? 
i y nioS. the punishment, as applied to delinquency, may be unprofitable, i 
virtue of the danger there may be of its involving the innocei 
in the fate designed only for the guilty. Whence should th 
danger then arise ? From the difficulty there may be of fixii 
the idea of the guilty action : that is, of subjecting it to such 
definition as shall be clear and precise enough to guard effe 
tually against misapplication. This difficulty may arise fro 
either of two sources : the one permanent, to wit, the nature 
the actions themselves : the other occasional, I mean the qualiti 
of the men who may have to deal with those actions in the w; 
of government. In as far as it arises from the latter of thei 
sources, it may depend partly upon the use which the legislai 
may be able to make of language ; partly upon the use whk, 
according to the apprehension of the legislator, the judge nv 
be disposed to make of it. As far as legislation is concern* , 
it will depend upon the degree of perfection to which the as 
of language may have been carried, in the first place, in 1e 
nation in general ; in the next place, by the legislator in p - 
ticular. It is to a sense of this difficulty, as it should seem, tit 
we may attribute the caution with which most legislators hre 
abstained from subjecting to censure, on the part of the Itf, 
such actions as come under the notion of rudeness, for exam] 3, 
or treachery, or ingratitude. The attempt to bring acts 0:10 
vague and questionable a nature under the control of law, 11 
argue either a very immature age, in which the difficulss 
which give birth to that danger are not descried ; or a \:y 
enlightened age, in which they are overcome l . 

1 In certain countries, in which the voice of the people has a i* 

xvn.] Penal Branch of Jurisprudence. 319 

XV. For the sake of obtaining the clearer idea of the limits Legislation 
between the art of legislation and private ethics, it may now 

time to call to mind the distinctions above established with mentof the 

.regard to ethics in general. The degree in which private ethics 

jstands in need of the assistance of legislation, is different in the 

, three branches of duty above distinguished. Of the rules of 

! moral duty, those which seem to stand least in need of the as 

sistance of legislation are the rules of prudence. It can only be 

through some defect on the part of the understanding, if a man 

be ever deficient in point of duty to himself. If he does wrong, 

\ there is nothing else that it can be owing to but either some in~ 

\ advertence 1 or some mis-supposal l with regard to the circum- 

I ?tances on which his happiness depends. It is a standing topic 
i )f complaint, that a man knows too little of himself. Be it so : 
s )ut is it so certain that the legislator must know more 2 ? It is 
it blain, that of individuals the legislator can know nothing : con- 
i: :eraing those points of conduct which depend upon the parti- 
IT :ular circumstances of each individual, it is plain, therefore, 
: 1 [hat he can determine nothing to advantage. It is only with 
! -espect to those broad lines of conduct in which all persons, or 
it r ery large and permanent descriptions of persons, may be in a 
i fay to engage, that he can have any pretence for interfering ; 
r nd even here the propriety of his interference will, in most 

special control over the hand of the legislator, nothing can exceed the 

II read which they are under of seeing any effectual provision made against 
, ; le offences which come under the head of defamation, particularly that 

ranch of it which may be styled the political. This dread seems to de- 
end partly upon the apprehension they may think it prudent to entertain 
,., < I a defect in point of ability or integrity on the part of the legislator, 
artly upon a similar apprehension of a defect in point of integrity on the 
!^ art of the judge. 
. :;I v l See ch. ix. [Consciousness]. 

1 Ch. xvi. [Division] lii. 

- On occasions like this the legislator should never lose sight of the 
^. ell-known story of the oculist and the sot. A countryman who had hurt 

s eyes by drinking, went to a celebrated oculist for advice. He found 

P Sim at table, with a glass of wine before him. You must leave off drink- 

^ g, said the oculist. How so ? says the countryman. You don t, and 

it methinks your own eyes are none of the best. That s very true, 

iend, replied the oculist : but you are to know, I love my bottle 

;tter than my eyes. 

320 Of the Limits of the [CHAP. 

instances, lie very open to dispute. At any rate, he must never 
expect to produce a perfect compliance by the mere force of the 
sanction of which he is himself the author. All he can hope to 
do, is to increase the efficacy of private ethics, by giving strength 
and direction to the influence of the moral sanction. With 
what chance of success, for example, would a legislator go 
about to extirpate drunkenness and fornication by dint of legal 
punishment ? Not all the tortures which ingenuity could invent 
would compass it: and, before he had made any progress worth 
regarding, such a mass of evil would be produced by the punish 
ment, as would exceed, a thousand-fold, the utmost possible 
mischief of the offence. The great difficulty would be in the 
procuring evidence ; an object which could not be attempted, 
with any probability of success, without spreading dismay 
through every family 1 , tearing the bonds of sympathy asunder 2 , 
and rooting out the influence of all the social motives. All that 
he can do then, against/ offences of this nature, with any prol 
spect of advantage, in the way of direct legislation, is to subject 
them, in cases of notoriety, to a slight censure, so as thereby f 
to cover them with a slight shade of artificial disrepute. 

Apt to go XVI. It may be observed, that with regard to this branch of 
this respect, duty, legislators have, in general, been disposed to carry their n 

interference full as far as is expedient. The great difficulty here f- 
is, to persuade them to confine themselves within bounds. A 
thousand little passions and prejudices have led them to narrow , 
the liberty of the subject in this line, in cases in which the t 
punishment is either attended with no profit at all, or with , :; 
none that will make up for the expense. 

Particu- XVII. The mischief of this sort of interference is more par- 
Iwitters of ticularly conspicuous in the article of religion. The reasoning, . 
religion. n ^- g cas6j j s o f ^he following stamp. There are certain errors, 

in matters of belief, to which all mankind are prone : and for ; 
these errors in judgment, it is the determination of a Being of 

1 Evil of apprehension : third branch of the evil of a punisl 
Ch. xiii. iv. 

2 Derivative evils : fourth branch of the evil of a punishment. Ib. . 

jxvn.] Penal Branch of Jurisprudence. 321 

infinitebenevolence, to punish them with an infinity of torments. 
But from these errors the legislator himself is necessarily free : 
for the men, who happen to be at hand for him to consult with, 
being men perfectly enlightened, unfettered, and unbiassed, have 
such advantages over all the rest of the world, that when they 
sit down to enquire out the truth relative to points so plain and 
30 familiar as those in question, they cannot fail to find it. This 
3emg the case, when the sovereign sees his people ready to 
blunge headlong into an abyss of fire, shall he not stretch out a 
land to save them ? Such, for example, seems to have been the 
Tain of reasoning, and such the motives, which led Lewis the 
IVth into those coercive measures which he took for the con- 
rersion of heretics and the confirmation of true believers. The 
;round-work, pure sympathy and loving-kindness : the super- 
tructure, all the miseries which the most determined malevo- 
iisnce could have devised 1 . But of this more fully in another 
!;ilace 2 . 

XVIII. The rules of probity are those, which in point of ex- -HOW far 
ediency stand most in need of assistance on the part of the? TtK- 
ftislator, and in which, in point of fact, his interference has theTctatef 
een most extensive. There are few cases in which it would be of probit y- 
ppedient to punish a man for hurting himself : but there are 
jw cases, if any, in which it would not be expedient to punish a 

1 I do not mean but that other motives of a less social nature might 
ive introduced themselves, and probably, in point of fact, did introduce 
lemselyes, in the progress of the enterprise. But in point of possibility, 
te motive above mentioned, when accompanied with such a thread of rea- 
ning, is sufficient, without any other, to account for all the effects above 
luded to. If any others interfere, their interference, how natural soever, 
ay be looked upon as an accidental and inessential circumstance, not ne- 
ssary to the production of the effect. Sympathy, a concern for the 
tnger they appear to be exposed to, gives birth to the wish of freeing 
em from it : that wish shows itself in the shape of a command : this com- 
and produces disobedience : disobedience on the one part produces disap- 
untment on the other : the pain of disappointment produces ill-will 
wards those who are the authors of it. The affections will often make 
is progress in less time than it would take to describe it. The sentiment 
wounded pride, and other modifications of the love of reputation and the 
re of power, add fuel to the flame. A kind of revenge exasperates the 
verities of coercive policy. 
8 See B. I. tit. [Self-regarding offences.] 


322 Of the Limits of the [CHAP. = 

man for injuring his neighbour. With regard to that branch of 
probity which is opposed to offences against property, private 
ethics depends in a manner for its very existence upon legis 
lation. Legislation must first determine what things are to be 
regarded as each man s property, before the general rules of 
ethics, on this head, can have any particular application. The 
case is the same with regard to offences against the state. With 
out legislation there would be no such thing as a state : no par 
ticular persons invested with powers to be exercised for the 
benefit of the rest. It is plain, therefore, that in this branch the 
interference of the legislator cannot anywhere be dispensed with. 
We must first know what are the dictates of legislation, before 
we can know what are the dictates of private ethics 1 . 
of the XIX. As to the rules of beneficence, these, as far as concerns 

beneficence, matters of detail, must necessarily be abandoned in great mea 
sure to the jurisdiction of private ethics. In many cases the 
beneficial quality of the act depends essentially upon the dis 
position of the agent ; that is, upon the motives by which he 
appears to have been prompted to perform it : upon their be 
longing to the head of sympathy, love of amity, or love of repu 
tation ; and not to any head of self-regarding motives, brought 
into play by the force of political constraint : in a word, upon 
their being such as denominate his conduct free and voluntary, 
according to one of the many senses given to those ambiguous 
expressions 2 . The limits of the law on this head seem, how- 

1 But suppose the dictates of legislation are not what they ought to be: 
what are then, or (what in this case conies to the same thing) what ought 
to be, the dictates of private ethics? Do they coincide with the dictates 
of legislation, or do they oppose them, or do they remain neuter ? a very 
interesting question this, but one that belongs not to the present subject. 
It belongs exclusively to that of private ethics. Principles which may lead 
to the solution of it may be seen in A Fragment on Government, p. 1 50, 
Lond. edit. 1776 and p. 114, edit. 1823. 

2 If we may believe M. Voltaire \ there was a time when the French 
ladies who thought themselves neglected by their husbands, used to petition 
pouretre embesoignees: the technical word, which, he says, was appropriated 
to this purpose. This sort of law-proceedings seems not very well calcu 
lated to answer the design: accordingly we hear nothing of them now-a- 

Quest, sur 1 Encyclop. torn. 7- art. Impuissance. 

xvii.] Penal Branch of Jurisprudence. 323 

ever, to be capable of being extended a good deal farther than 
they seem ever to have been extended hitherto. In particular, 
in cases where the person is in danger, why should it not be 
made the duty of every man to save another from mischief , when 
it can be done without prejudicing himself, as well as to abstain 
from bringing it on hmi ? This accordingly is the idea pursued 
in the body of the work *. 

XX. To conclude this section, let us recapitulate and bring to Difference 
a point the difference between private ethics, considered as an private 11 
art or science, on the one hand, and that branch of jurisprudence thwart*"? 
which contains the art or science of legislation, on the other. reflpitu n 
Private ethics teaches how each man may dispose himself to 1 
pursue the course most conducive to hiso wn happiness, by means 
of such motives as offer of themselves : the art of legislation 
(which may be considered as one branch of the science of juris 
prudence) teaches how a multitude of men, composing a com 
munity, may be disposed to pursue that course which upon the 
whole is the most conducive to the happiness of the whole com 
munity, by means of motives to be applied by the legislator. 

We come now to exhibit the limits between penal and civil 
jurisprudence. For this purpose it may be of use to give a dis 
tinct though summary view of the principal branches into which 
jurisprudence, considered in its utmost extent, is wont to be 

2. Jurisprudence, its branches. 

XXI. Jurisprudence is a fictitious entity: nor can any mean- Jurispru- 
ing be found for the word, but by placing it in company with pository 
some word that shall be significative of a real entity. To know ce 

days. The French ladies of the present age seem to be under no such 

1 A woman s head-dress catches fire : water is at hand : a man, instead 
of assisting to quench the fire, looks on, and laughs at it. A drunken man, 
falling with his face downwards into a puddle, is in danger of suffocation : 
lifting his head a little on one side would save him : another man sees this 
and lets him lie. A quantity of gunpowder lies scattered about a room : a 
man is going into it with a lighted candle : another, knowing this, lets him 
go in without warning. Who is there that in any of these cases would 
think punishment misapplied ? 

Y 2 

324 Qf the Limits of the [CHAP. 

what is meant by jurisprudence, we must know, for example, 
what is meant by a book of jurisprudence. A book of jurispru 
dence can have but one or the other of two objects : i. To ascer 
tain what the law 1 is: 2. to ascertain what it ought to be. In the 
former case it may be styled a book of expository jurisprudence ; 
in the latter, a book of censorial jurisprudence : or, in other 
words, a book on the art of legislation. 

Expository XXII. A book of expository jurisprudence, is either authori- 
tative oi unauthoritative. It is styled authoritative, when it is 
composed by him who, by representing the state of the law to be 
so and so, causeth it so to be ; that is, of the legislator him 
self : unauthoritative, when it is the work of any other person 
at large. 

Sources of XXIII. Now law, or the law, taken indefinitely, is an abstract 

thedistinc- -, -M , i -, ,1 

tions yet re- and collective term ; which, when it means any thing, can mean 
neither more nor less than the sum total of a number of indi 
vidual laws taken together 2 . It follows, that of whatever other 
modifications the subject of a book of jurisprudence is sus 
ceptible, they must all of them be taken from some circumstance 
or other of which such individual laws, or the assemblages into 
which they may be sorted, are susceptible. The circumstances 
that have given rise to the principal branches of jurisprudence 
we are wont to hear of, seem to be as follows : I. The extent of 
the laws in question in point of dominion. 2. The political 
quality of the persons whose conduct they undertake to regulate. 

1 The word law itself, which stands so much in need of a definition, must 
wait for it awhile (see 3) : for there is no doing every thing at once. In 
the mean time every reader will understand it according to the notion he 
has been accustomed to annex to it. 

z In most of the European languages there are two different words for 
distinguishing the abstract and the concrete senses of the word law: which 
words are so wide asunder as not even to have any etymological affinity. 
In Latin, for example, there is lex for the concrete sense, jus for the 
abstract: in Italian, legge and diritto: in French, loi and droit: in Spanish, 
ley and derecho : in German, gesetz and recht. The English is at present 
destitute of this advantage. 

In the Anglo-Saxon, besides lage, and several other words, for the con 
crete sense, there was the word right, answering to the German recht, for 
the abstract as may be seen in the compound folc-right, and in other in 
stances. But the word right having long ago lost this sense, the modern 
English no longer possesses this advantage. 

xvii.] Penal Branch of Jurisprudence. 325 

3. The time of their being in force. 4. The manner in which 
they are expressed. 5. The concern which they have with the 
article of punishment. 

XXIV. In the first place, in point of extent, what is delivered Jurispru- 

, , , . , . , ., . , , dence, local 

concerning the laws in question, may have reterence either to universal, 
the laws of such or such a nation or nations in particular, or to 
the laws of all nations whatsoever : in the first case, the book 
may be said to relate to local, in the other, to universal, juris 

Now of the infinite variety of nations there are upon the 
earth, there are no two which agree exactly in their laws : cer 
tainly not in the whole : perhaps not even in any single article : 
and let them agree to-day, they would disagree to-morrow. This 
is evident enough with regard to the substance of the laws : and 
it would be still more extraordinary if they agreed in point 
of/orm; that is, if they were conceived in precisely the same 
strings of words. What is more, as the languages of nations are 
commonly different, as well as their laws, it is seldom that, 
strictly speaking, they have so much as a single word in com 
mon. However, among the words that are appropriated to the 
subject of law, there are some that in all languages are pretty 
exactly correspondent to one another: which comes to the same 
thing nearly as if they were the same. Of this stamp, for ex 
ample, are those which correspond to the words power, right, 
Obligation, liberty, and many others. 

It follows, that if there are any books which can, properly 
speaking, be styled books of universal jurisprudence, they must 
DC looked for within very narrow limits. Among such as are 
expository, there can be none that are authoritative : nor even, 
is far as the substance of the laws is concerned, any that are un- 
tuthoritative. To be susceptible of an universal application, all 
;hat a book of the expository kind can have to treat of, is the 
mport of words : to be, strictly speaking, universal, it must con- 
ine itself to terminology. Accordingly the definitions which 
here has been occasion here and there to intersperse in the 
course of the present work, and particularly the definition here- 

326 Of the Limits of the [CHAP. 

after given of the word law, may be considered as matter be 
longing to the head of universal jurisprudence. Thus far in 
strictness of speech : though in point of usage, where a man, in 
laying down what he apprehends to be the law, extends his 
views to a few of the nations with which his own is most con 
nected, it is common enough to consider what he writes as 
relating to universal jurisprudence. 

It is in the censorial line that there is the greatest room for 
disquisitions that apply to the circumstances of allnations alike: 
and in this line what regards the substance of the laws in ques 
tion is as susceptible of an universal application, as what regards 
the words. That the laws of all nations, or even of any two 
nations, should coincide in all points, would be as ineligible as 
it is impossible : some leading points, however, there seem to 
be, in respect of which the laws of all civilised nations might, 
without inconvenience, be the same. To mark out some of 
these points will, as far as it goes, be the business of the body 
of this work. 

-internal XXV. In the second place, with regard to the political quality 
national. 1 " of the persons whose conduct is the object of the law. These 
may, on any given occasion, be considered either as members of 
the same state, or as members of different states : in the first 
case, the law may be referred to the head of internal, in the 
second case, to that of international 1 jurisprudence. 

Now as to any transactions which may take place between in^ 
dividuals who are subjects of different states, these are regulated 
by the internal laws, and decided upon by the internal tribunals, 
of the one or the other of those states: the case is the same where 
the sovereign of the one has any immediate transactions with a 

1 The word international, it must be acknowledged, is a new one; 
though, it is hoped, sufficiently analogous and intelligible. It is calculated 
to express, in a more significant way, the branch of law which goes com 
monly under the name of the law of nations : an appellation so uncharac 
teristic, that, were it not for the force of custom, it would seem rather to 
refer to internal jurisprudence. The chancellor D Aguesseau has already 
made, I find, a similar remark : he says that what is commonly called droit 
des gens, ought rather to be termed droit entre les gens \ 

1 (Euvres, Tom. ii. p. 337, edit. 1773, 12.110. 

xvii.] Penal Branch of Jurisprudence. 327 

private member of the other : the sovereign reducing himself, 
pro re natd, to the condition of a private person, as often as he 
submits his cause to either tribunal ; whether by claiming 
a benefit, or defending himself against a burthen. There re 
main then the mutual transactions between sovereigns, as such, 
for the subject of that branch of jurisprudence which may be 
properly and exclusively termed international 1 . 

With what degree of propriety rules for the conduct of per 
sons of this description can come under the appellation of laws, 
I is a question that must rest till the nature of the thing called 
a law shall have been more particularly unfolded. 

It is evident enough, that international jurisprudence may, 
i as well as internal, be censorial as well as expository, unauthori- 
; tative as well as authoritative. 

XXVI. Internal jurisprudence, again, may either concern all the ^. ntern ( ? 1 ^g 
| members of a state indiscriminately, or such of them only as are natwnaUnd 
jj connected in the way of residence, or otherwise, with a particular local or par- 
\ district. Jurisprudence is accordingly sometimes distinguished 
I into national and provincial. But as the epithet provincial is 
t hardly applicable to districts so small as many of those which 
have laws of their own are wont to be, such as towns, parishes, 
and manors ; the term local (where universal jurisprudence is 
plainly out of the question) or the term particular, though this 

1 In the times of James I. of England and Philip III. of Spain, certain 
merchants at London happened to have a claim upon Philip, which his 
ambassador Gondemar did not think fit to satisfy. They applied for coun 
sel to Selden, who advised them to sue the Spanish monarch in the court of 
King s Bench, and prosecute him to an outlawry. They did so : and the 
sheriffs of London were accordingly commanded, in the usual form, to take 
the body of the defendant Philip, wherever it was to be found within their 
bailiwick. As to the sheriffs, Philip, we may believe, was in no great 
fear of them : but, what answered the same purpose, he happened on his 
| part to have demands upon some other merchants, whom, so long as the 
j outlawry remained in force, there was no proceeding against. Gondemar 
paid the money \ This was internal jurisprudence : if the dispute had 
been betwixt Philip and James himself, it would have been international. 
As to the word international, from this work, or the first of the works 
edited in French by Mr. Dumont, it has taken root in the language. 
Witness reviews and newspapers. 

i Selden s Table-Talk, tit. Law. 

328 Of the Limits of the [CHAP. 

latter is not very characteristic, might either of them be more 
commodious 1 . 

dence pru " XXVII. Thirdly, with respect to time. In a work of the 
n"fng nt ~ expository kind, the laws that are in question may either be 
such as are still in force at the time when the book is writing, 
or such as have ceased to be in force. In the latter case the 
subject of it might be termed ancient ; in the former, present or 
living jurisprudence : that is, if the substantive jurisprudence, 
and no other, must at any rate be employed, and that with an 
epithet in both cases. But the truth is, that a book of the former 
kind is rather a book of history than a book of jurisprudence ; 
and, if the word jurisprudence be expressive of the subject, it is 
only with some such words as history or antiquities prefixed. 
And as the laws which are any where in question are supposed, 
if nothing appears to the contrary, to be those which are in \ 
force, no such epithet as that of present or living commonly 

Where a book is so circumstanced, that the laws which form 
the subject of it, though in force at the time of its being written, 
are in force no longer, that book is neither a book of living juris 
prudence, nor a book on the history of jurisprudence : it is no 
longer the former, and it never was the latter. It is evident 
that, owing to the changes which from time to time must take 
place, in a greater or less degree, in every body of laws, every 
book of jurisprudence, which is of an expository nature, must in 
the course of a few years, come to partake more or less of this 

The most common and most useful object of a history of juris 
prudence, is to exhibit the circumstances that have attended the 
establishment of laws actually in force. But the exposition of 
the dead laws which have been superseded, is inseparably inter 
woven with that of the living ones which have superseded them. 

1 The term municipal seemed to answer the purpose very well, till it 
was taken by an English author of the first eminence to signify internal 
law in general, in contradistinction to international law, and the imaginary 
law of nature. It might still be used in this sense, without scruple, in any 
other language. 

xvii.] Penal Branch of Jurisprudence. 329 

The great use of both these branches of science, is to furnish ex 
amples for the art of legislation x . 

XXVIII. Fourthly, in point of expression, the laws in question Jurispru- 
nay subsist either in the form of statute or in that of customary tutory- 


As to the difference between these two branches (which re 

spects only the article of form or expression) it cannot properly 

)e made appear till some progress has been made in the defini- 

ion of a law. 

. XXIX. Lastly, The most intricate distinction of all, and that Jurispru- 
: yhich comes most frequently on the carpet, is that which is - 6 penai 
. aade between the civil branch of jurisprudence and the penal, 

latter is wont, in certain circumstances, to receive the 
ame of criminal. 
i What is a penal code of laws ? What a civil code ? Of what Question 

r . . concerning 

ature are their contents ? Is it that there are two sorts of the distinc 

tion between 
iws, the one penal the other civil, so that the laws in a penal the civil 

. branch and 

3de are all penal laws, while the laws in a civil code are all the penal, 

*iivil laws ? Or is it, that in every law there is some matter 

rhich is of a penal nature, and which therefore belongs to the 

enal code ; and at the same time other matter which is of a civil 

1 ature, and which therefore belongs to the civil code ? Or is 

I , that some laws belong to one code or the other exclusively, 

hile others are divided between the two ? To answer these 

lestions in any manner that shall be tolerably satisfactory, it 

ill be necessary to ascertain what a law is ; meaning one entire 

it single law : and what are the parts into which a law, as such, 

1 J Of what stamp are the works of Grotius, Puffendorf, and Burlamaqui? 
e they political or ethical, historical or juridical, expository or censorial? 
Sometimes one thing, sometimes another : they seem hardly to have 
btled the matter with themselves. A defect this to which all books must 
nost unavoidably be liable, which take for their subject the pretended 
v of nature ; an obscure phantom, which, in the imaginations of those 
10 go in chase of it, points sometimes to manners, sometimes to laws ; 
metimes to what law is, sometimes to what it ought to be *. Montesquieu 
is out upon the censorial plan : but long before the conclusion, as if he 
d forgot his first design, he throws off the censor, and puts on the anti- 
arian. The Marquis Beccaria s book, the first of any account that is 
iformly censorial, concludes as it sets out, with penal jurisprudence. 

See Chap. II. [Principles Adverse] xiv. 

330 Of the Limits of the [CHAP, 

is capable of being distinguished : or, in other words, to ascer 
tain what the properties are that are to be found in every object 
which can with propriety receive the appellation of a law. 
This then will be the business of the third and fourth sections : \ 
what concerns the import of the word criminal, as applied to > 
law, will be discussed separately in the fifth 1 . 

Occasion and 1 Here ends the original work, in the state into which it was brought in|. 

conceding th s November, 1780. What follows is now added in January, 1789. 

note. The third, fourth, and fifth sections intended, as expressed in the textu 

to have been added to this chapter, will not here, nor now be given ; , 
because to give them in a manner tolerably complete and satisfactory, , 
might require a considerable volume. This volume will form a work of 
itself, closing the series of works mentioned in the preface. 

What follows here may serve to give a slight intimation of the nature ofj 
the task, which such a work will have to achieve : it will at the same time \ 
furnish, not any thing like a satisfactory answer to the questions mentioned 
in the text, but a slight and general indication of the course to be taken j 
for giving them such an answer. 

By a law here What is a law ? What the parts of a law? The subject of these ques^ 

a " t , eant a tions, it is to be observed, is the logical, the ideal, the intellectual whole, > 
not the physical one : the law, and not the statute. An enquiry, directed to 
the latter sort of object, could neither admit of difficulty nor afford instruc-j. 
tion. In this sense whatever is given for law by the person or persons 
recognised as possessing the power of making laws, is law. The Meta 
morphoses of Ovid, if thus given, would be law. So much as was embraced 
by one and the same act of authentication, so much as received the toucl 
of the sceptre at one stroke, is one law : a whole law, and nothing more 
A statute of George II. made to substitute an or instead of an and ir 
a former statute is a complete law ; a statute containing an entire body o: 
laws, perfect in all its parts, would not be more so. By the word law then 
as often as it occurs in the succeeding pages is meant that ideal object, o: 
which the part, the whole, or the multiple, or an assemblage of parts 
wholes, and multiples mixed together, is exhibited by a statute ; not th< 
statute which exhibits them. 

Every law is Every law, when complete, is either of a coercive or an uncoercive nature 

mand, o^a" A coercive law is a command. 

revocation of An uncoercive, or rather a cfo scoercive, law is the revocation, in whole o 
in part, of a coercive law. 

A declaratory What has been termed a declaratory law, so far as it stands distinguishe< . 

pe^iy sneaking", from either a coercive or a discoercive law, is not properly speaking a la\< 

a law. it j s no t the expression of an act of the will exercised at the time : it i 

a mere notification of the existence of a law, either of the coercive or th 
discoercive kind, as already subsisting : of the existence of some documer 
expressive of some act of the will, exercised, not at the time, but at som 
former period. If it does any thing more than give information of this fac 
viz. of the prior existence of a law of either the coercive or the discoerciv 
kind, it ceases pro tanto to be what is meant by a declaratory law, an 
assuming either the coercive or the discoercive quality. 

Every coercive Every coercive law creates an offence, that is, converts an act of son: 

r n.] Penal Branch of Jurisprudence. 331 

>rt, or other into an offence. It is only by so doing that it can impose law creates an 
digation, that it can produce coercion. 

A law confining itself to the creation of an offence, and a law com- vi. 
.anding a punishment to be administered in case of the commission of aVoffen^uS 
ich an offence, are two distinct laws; not parts (as they seem to have been one appointing 
merally accounted hitherto) of one and the same law. The acts they are^ inct 
( >mmand are altogether different ; the persons they are addressed to are laws< 
I together different. Instance, Let no man steal ; and, Let the judge cause 
, hoever is convicted of stealing to be hanged. 

I They might be styled; the former, a simply imperative law ; the other a 
\mitory : but the punitory, if it commands the punishment to be inflicted, 
iid does not merely permit it, is as truly imperative as the other: only it is 
liinitory besides, which the other is not. 

A law of the discoercive kind, considered in itself, can have no punitory vn. 
liw belonging to it : to receive the assistance and support of a punitory it^^n "ale 6 
jjw, it must first receive that of a simply imperative or coercive law, and it no punitory 
I to this latter that the punitory law will attach itself, and not to the dis- toltoTbut" 1 " 
I ercive one. Example; discoercive law. The sheriff has power to hang all j^ r r u v |n ^ of 
\.ch as the judge, proceeding in due course of law, shall order him to hang, coeKhreone. 
fjxample of a coercive law, made in support of the above discoercive one. 
1 3$ no man hinder the sheriff from hanging such as the judge, proceeding in 
jjee course of law, shall order him to hang. Example of a punitory law, 
fade in support of the above coercive one. Let the judge cause to be 
fyprisoned whosoever attempts to hinder the sheriff from hanging one, whom 
\.zjudge, proceeding in due course of law, has ordered him to hang. 
I But though a simply imperative law, and the punitory law attached to vin. 
I are so far distinct laws, that the former contains nothing of the latter, w involves" 3 
lid the latter, in its direct tenor, contains nothing of the former ; yet th * s P 1 y |m : 
I implication, and that a necessary one, the punitory does involve and pe 
I elude the import of the simply imperative law to which it is appended. 
1) say to the judge, Cause to be hanged whoever in due form of law is 
Knvicted of stealing, is, though not a direct, yet as intelligible a way of 
Intimating to men in general that they must not steal, as to say to them 
! rectly, Do not steal : and one sees, how much more likely to be efficacious. 
- It should seem then, that, wherever a simply imperative law is to hav 
j punitory one appended to it, the former might be spared altogether : ii 
\ lich case, saving the exception (whichnaturally should seem not likely to f"!f h ^ h s er a r e d 
!i a frequent one) of a law capable of answering its purpose without such but. for its ex- 
I . appendage, there should be no occasion in the whole body of the law for j^-ft^? 
* : .y other than punitory, or in other words than penal, laws. And this, 
: rhaps, would be the case, were it not for the necessity of a large 
.antity of matter of the expository kind, of which we come now to speak. 
It will happen in the instance of many, probably of most, possibly of all Nature ^; f such 
mniands endued with the force of a public law, that, in the expression expository 
;;ren to such a command, it shall be necessary to have recourse to terms matter - 
I; D complex in their signification to exhibit the requisite ideas, without 
|;s assistance of a greater or less quantity of matter of an expository 
ture. Such terms, like the symbols used in algebraical notation, are 
bher substitutes and indexes to the terms capable of themselves of ex- 
siting the ideas in question, than the real and immediate representatives 
those ideas. 

Take for instance the law, Thou sJialt not steal. Such a command, were 
to rest there, could never sufficiently answer the purpose of a law. 
word of so vague and unexplicit a meaning can no otherwiseperformthia 

have ix. 

The simply im- 

111 npratvc one 

33^ Of the Limits of the 

office, than by giving a general intimation of a variety of propositions, each 
requiring, to convey it to the apprehension, a more particular and ample 
assemblage of terms. Stealing, for example (according to a definition not 
accurate enough for use, but sufficiently so for the present purpose), is the 
taking of a thing which is another s, by one who has no TITLE so to do, and is 
conscious of his having none. Even after this exposition, supposing it a 
correct one, can the law be regarded as completely expressed ? Certainly 
not. For what is meant by a man s having a TITLE to take a thing? To be 
complete, the law must have exhibited, amongst a multitude of other 
things, two catalogues: the one of events to which it has given the quality 
of conferring title in such a case ; the other of the events to which it has 
given the quality of taking it away. What follows ? That for a man to 
have stolen, for a man to have had no title to what he took, either no one of 
the articles contained in the first of those lists must have happened in his : 
favour, or if there has, some one of the number of those contained in the 
second must have happened to his prejudice. 

The vStness ? uch then is the nature of a general law, that while the imperative part 
of its compara- of it, the punctum saliens as it may be termed, of this artificial body, shall 
JSK not not take U P above two or three words, its expository appendage, without 
legislative which that imperative part could not rightly perform its office, may occupy 
a considerable volume. 

But this may equally be the case with a private order given in a family. 
Take for instance one from a bookseller to his foreman. Remove, from thi* 
shop to my new one, my whole stock, according to this printed catalogue. 
Remove, from this shop to my new one, my whole stock, is the imperative : 
matter of this order ; the catalogue referred to contains the expository 

The Se mass ^^ Q sam . e mass ^ ex P osi tory matter may serve in common for, may 
or expository appertain in common to, many commands, many masses of imperative: 
^1,1. matter - Thus, amongst other things, the catalogue of collative and ablative 
laws f r many events . with res P e t to titles above spoken of (see No. IX. of this note), will : 
belong in common to all or most of the laws constitutive of the various 
offences against property. Thus, in mathematical diagrams, one and the j 
same base shall serve for a whole cluster of triangles. 

xm. Such expository matter, being of a complexion so different from the im- 

charater ratlve perative it would be no wonder if the connection of the former with the 
i e b a 1 tto la tt er should escape the observation : which,, indeed, is perhaps pretty 
be concealed i n generally the case. And so long as any mass of legislative matter presents 
fory uLuer? 51 " ^self, which isnot itself imperative or the contrary, or of which the connec 
tion with matter of one of those two descriptions is not apprehended, so 
long and so far the truth of the proposition, Tliai every law is a command . 
or its opposite, may remain unsuspected, or appear questionable ; so long 
also may the incompleteness of the greater part of those masses of legisla 
tive matter, which wear the complexion of complete laws upon the face of 
them, also the method to be taken for rendering them really complete, 
remain undiscovered. 

The Si?eai A circumstance, that will naturally contribute to increase the difficulty 

ment is favour- of the discovery, is the great variety of ways in which the imperation of a 

fuudeonndi 1 - 1 " law may be conveyed the great variety of forms which the imperative part 

rect forms in of a law may indiscriminately assume : some more directly, some less directl) 

"tiv^maucHs" expressive of the imperative quality. Thou shalt not steal. Let no man 

bein ^couched s * eal " Whoso stealeth shall be punished so and so. If any man steal, ht 

shall be punished so and so. Stealing is where a man docs so and so ; tht 

punishment for stealing is so and so. To judges so and so named, and ec 

Penal Branch of Jurisprudence. 333 

id so constituted, belong the cognizance of such and such offences viz 
Baling and so on. These are but part of a multitude of forms of words 
any of which the command by which stealing is prohibited might equally 
. couched : and it is manifest to what a degree, in some of them the 
iterative quality is clouded and concealed from ordinary apprehension 
After this explanation, a general proposition or two, that may be laid xv 
wn, may help to afford some little insight into the structure and contents Nu f mber /T 
a complete body of laws.-So many different sorts of offences created, so B5h? 
any different laws of the coercive kind : so many exceptions taken out of mned eter 
e descriptions of those offences, so many laws of the discoercive kind 
To class offences, as hath been attempted to be done in the preceding 
apter, is therefore to class laws: to exhibit a complete catalogue of all 
je offences created by law, including the whole mass of expository matter 
pessary for fixing and exhibiting the import of the terms contained in the 
Krai laws, by which those offences are respectively created, would be to 
obit a complete collection of the laws in force : in a word a complete 

dy of law ; a pannomion, if so it might be termed. 

i From the obscurity in which the limits of a law, and the distinction xvi. 

twixt a law of the civil or simply imperative kind and a punitory law SttfeTtotT 
13 naturally involved, results the obscurity of the limits betwixt a civil be ween ;i ci 
i d a penal code, betwixt a civil branch of the law and the penal. codY pem 

; The question, What parts of the total mass of legislative matter belong-to 
i;5 civil branch, and what to the penal? supposes that divers political states 
t at least that some one such state, are to be found, having as well a civil 
jjde as a penal code, each of them complete in its kind, and marked out 
jj- certain limits. But no one such state has ever yet existed. 
f;To put a question to which a true answer can be given, we must sub- 
Mate to the foregoing question some such a one as that which follows : 
( Suppose two masses of legislative matter to be drawn up at this time of 
r y, the one under the name of a civil code, the other of a penal code, each 
|;<ant to be complete in its kind in what general way, is it natural to 
f appse, that the different sorts of matter, as above distinguished, would be 
tributed between them ? 

* To this question the following answer seems likely to come as near as 
I JT other to the truth. 

Che civil code would not consist of a collection of civil laws, each com- 
j te in itself, as well as clear of all penal ones : 

Neither would the penal code (since we have seen that it could not) 
i isist of a collection of punitive laws, each not only complete in itself,but 

Mr of fl.ll mini rmoo TJnf 

civil code. 


c ir of all civil ones. _ 

f Che civil code would consist chiefly of mere masses of expository matter. xvn. 

- Q imperative matter, to which those masses of expository matter re- Contents of a 

fi ctively appertained, would be found not in that same code not in the 

( il code nor in a pure state, free from all admixture of punitory laws ; 

1 1 in the penal code in a state of combination involved, in manner as 

)ve explained, in so many correspondent punitory laws. 

^ tne penal code tnen would consist principally of punitive laws, involving xvm. 
1 imperative matter of the whole number of civil laws : along with which SSSeSsSl 1 
i uld probably also be found various masses of expository matter, apper- 
t amg not to the civil, but to the punitory laws. The body of penal law, 
MJted by the Empress- Queen Maria Theresa, agrees pretty well with this 


i ount. 


The mass of legislative matter published in French as well as German, 
t ler the auspices of Frederic II. of Prussia, by the name of Code 

334 Of tfo Limits of the [CHAP] 

Frederic, but never established with force of law \ appears, for example, to 
almost lost n be almost wholly composed of masses of expository matter, the relation of 
matter sit ry which to any imperative matter appears to have been but very imperfectly? 


xx. In that enormous mass of confusion and inconsistency, the ancient 

RomarUaw. Roman, or, as it is termed by way of eminence, the civil law, the imperative 

matter, and even all traces of the imperative character, seem at last to have 

been smothered in the expository. Esto had been the language of primscval 

simplicity : esto had been the language of the twelve tables. By the time 

of Justinian (so thick was the darkness raised by clouds of commentators) 

the penal law had been crammed into an odd corner of the civil the whole 

catalogue of offences, and even of crimes, lay buried under a heap of 

obligations will was hid in opinion and the original esto had transformed 

itself into videtur, in the mouths even of the most despotic sovereigns. 

xxi. Among the barbarous nations that grew up out of the ruins of the 

in the barba- Roman Empire, Law, emerging from under the mountain of expository ; 

stands conspi- rubbish, reassumed for a while the language of command : and then she had 

cuous. simplicity at least, if nothing else, to recommend her. 

xxii. Besides the civil and the penal, every complete body of law must con- 

cocTe Hts con- 1 * a * n a third branch, the constitutional. 

nexion with the The constitutional branch is chiefly employed in conferring, on par-; 
two others. ticular classes of persons, powers, to be exercised for the good of the whole : 
society, or of considerable parts of it, and prescribing duties to the persons ; 
invested with those powers. 

The powers are principally constituted, in the first instance, by dis- 
coercive or permissive laws, operating as exceptions to certain laws of the 
coercive or imperative kind. Instance : A tax-gatherer, as such, may, or, 
such and such an occasion, take such and such things, without any othei 

The duties are created by imperative laws, addressed to the persons oil* 
whom the powers are conferred. Instance : On such and such an occasion : 
such and such a tax-gatherer shall take such and such things. Such and sud ; 
a judge shall, in such and such a case, cause persons so and so offending lo b> 

The parts which perform the function of indicating who the individual 
are, who, in every case, shall be considered as belonging to those classes 
have neither a permissive complexion, nor an imperative. 

They are so many masses of expository matter, appertaining in commoi 
to all laws, into the texture of which, the names of those classes of person . 
have occasion to be inserted. Instance ; imperative matter : Let thejudg 
cause whoever, in due course of law, is convicted of stealing, to be hanged 
Nature of the expository matter : Who is the person meant by the won 
judge? He who has been invested with that office in such a manner : an 
in respect of whom no event has happened, of the number of those, to whic 
the effect is given, of reducing him to the condition of one divested of tha ;; 

xxiu. Thus it is, that one and the same law, one and the same command, wi 

Thus the have its matter divided, not only between two great codes, or main branch* 
i^w may be ne of the whole body of the laws, the civil and the penal ; but amongst thre 
authreV^def suc h branches, the civil, the penal, and the constitutional. 

XXIV( In countries, where a great part of the law exists in no other shape, tha , 

Expository that of which in England is called common law but might be more exprei 

matter, a great 

1 Mirabeau sur la Monarchic Prussienne, Tom v. Liv. 8. p. 215. 

IVIT.] Penal Branch of Jurisprudence. 335 

ively termed judiciary, there must be a great multitude of laws, the im- quantity of it 
K>rt of which cannot be sufficiently made out for practice, without referring f v h ere e hf no" 

this common law, for more or less of the expository matter belonging to other form than 
hem. Thus in England the exposition of the word title, that basis of the or 

irhole fabric of the laws of property, is nowhere else to be found. And, as law - 

I incertainty is of the very essence of every particle of law so denominated 

i for the instant it is clothed in a certain authoritative form of words it 

i hanges its nature, and passes over to the other denomination) hence it is 

mat a great part of the laws in being in such countries remain uncertain 

Snd incomplete. What are those countries ? To this hour, every one on 

Sjhe surface of the globe. 

I Had the science of architecture no fixed nomenclature belonging to it 

jjrere there no settled names for distinguishing the different sorts of build- ^"a 

figs, nor the different parts of the same building from each other what f the . science 

pould it be? It would be what the science of legislation, considered with consfdere dTn 

pspect to its form, remains at present. }orm Ct f its 

1 Were there no architects who could distinguish a dwelling-house from a 
larn, or a side- wall from a ceiling, what would architects be? They would 

e what all legislators are at present. 

!: From this very slight and imperfect sketch, may be collected not an xxvi. 
|aswer to the questions in the text but an intimation, and that but an im- ^ordin^an 
perfect one, of the course to be taken for giving such an answer ; and, at exemplification 
lay rate, some idea of the difficulty, as well as of the necessity, of the * " 1 e V a i s fficulty 

^gjf f importance of 

I If it were thought necessary to recur to experience for proofs of this science; 
; ifficulty, and this necessity, they need not be long wanting. Ktftf l 

I Take, for instance, so many well- meant endeavours on the part of popular powers of 
ijodies, and so many well-meant recommendations in ingenious books, to representative 
^strain supreme representative assemblies from making laws in such and legislatures. 
Jich cases, or to such and such an effect. Such laws, to answer the intended 
lurpose, require a perfect mastery in the science of law considered in respect 
$: its form in the sort of anatomy spoken of in the preface to this work : 
fit a perfect, or even a moderate insight into that science, would prevent 
lieir being couched in those loose and inadequate terms, in which they may 
1 3 observed so frequently to be conceived ; as a perfect acquaintance with 
lie dictates of utility on that head would, in many, if not in most, of those 
ji Stances, discounsel the attempt. Keep to the letter, and in attempting 
& prevent the making of bad laws, you will find them prohibiting the making 
if the most necessary laws, perhaps even of all laws : quit the letter, and 
jjtey express no more than if each man were to say, Your laws shall become 
-so facto void, as often as they contain any thing which is not to my mind. 
! Of such unhappy attempts, examples may be met with in the legislation 
it many nations : but in none more frequently than in that newly-created 
\ ttion, one of the most enlightened, if not the most enlightened, at this day 
i i the globe. 

Take for instance the Declaration of Rights, enacted by the State of 
orth Carolina, in convention, in or about the month of September, 1788, 
id said to be copied, with a small exception, from one in like manner J 
acted by the State of Virginia *. 

The following, to go no farther, is the first and fundamental article : 
That there are certain natural rights, of which men, when they form a 
cial compact, cannot deprive or divest their posterity, among which are 

1 Recherches sur les Etats Unis, 8vo. 1788, vol. i. p. 158. 

336 Limits of the Penal Branch of Jurisprudence. 

the enjoyment of life and liberty, with the means of acquiring, possessing, 
and protecting property, and pursuing and obtaining happiness and safety. 

Not to dwell on the oversight of confining to posterity the benefit of the 
rights thus declared, what follows ? That as against those whom the pro 
tection, thus meant to be afforded, includes every law, or other order, 
divesting a man of the enjoyment of life or liberty, is void. 

Therefore this is the case, amongst others, with every coercive law. 

Therefore, as against the persons thus protected,every order, for example, 
to pay money on the score of taxation, or of debt from individual to indi 
vidual, or otherwise, is void : for the effect of it, if complied with, is to 
deprive and divest him, pro tanto, of the enjoyment of liberty, viz. the liberty 
of paying or not paying as he thinks proper : not to mention the species 
opposed to imprisonment, in the event of such a mode of coercion s being 
resorted to : likewise of property, which is itself a means of acquiring, 
possessing, and protecting property, and of pursuing and obtaining happiness 
and safety. 

Therefore also, as against such persons, every order to attack an armed ^ 
enemy, in time of war, is also void : for, the necessary effect of such an 
order is to deprive some of them of the enjoyment of life. 

The above-mentioned consequences may suffice for examples, amongst 
an endless train of similar ones 1 . 

Leaning on his elbow, in an attitude of profound and solemn meditation, 
What a multitude of things there are (exclaimed the dancing-master 
Marcel) in a minuet ! May we now add ? and in a law. 

1 The Virginian Declaration of Rights, said, in the French work above quoted, to have 
been enacted the ist of June, 1776, is not inserted in the publication entitled The Constitu 
tions of the several independent states of America, $c. Published by order of Congress: 
Philadelphia printed. Reprinted for Stockdale and Walker, London, 1782 : though that 
publication contains the form of government enacted in the same convention, between the i- 
6th of May and the 5;h of July in the same year. 

But in that same publication is contained a Declaration of Rights, of the province of j_ 
Massachusetts, dated in the years 1779 and 1780, which in its first article is a little similar: : 
also one of the province of Pennsylvania, dated between July 15111 and September 28th,in 
which the similarity is rather more considerable. 

Moreover, the famous Declaration of Independence, published by Congress July 5th, 1776, ,. 
after a preambular opening, goes on in these words : We hold these truths to be self-evident : 
that all men are created equal : that they are endued by the creator with certain unalicnabk \" 
rights : that amongst those are life, liberty, and the pursuit of happiness. 

The Virginian Declaration of Rights is that, it seems, which claims the honour of having . 
served as a model to those of the other Provinces ; and in respect of the above leading article, 
at least, to the above-mentioned general Declaration of Independence. See Recherches, &c., ; - 
i. 197. 

\Vho can help lamenting, that so rational a cause should be rested upon reasons, so much .. 
fitter to beget objections, than to remove them ? 

But with men, who are unanimous arid hearty about measures, nothing so weak but may 
pass in the. character of a reason: nor is this the first instance in the world, where the con 
clusion has supported the premises, instead of the premises the conclusion. 


Absolute duty, see Duty. 
\.buse of Trust, see Trust. 
Accessory offences, see Offences. 
Acquisition, pleasure of, p. 34. 
Let, advised and unadvised, 89. 
and action distinguished, 82. 
I- continued and transient, 74. 

and repeated, distinguished, 74. 
:- of discourse, what, 73. 
j- divisible and indivisible, 75. 

- external and internal, 73- 
jj- of the mind, what, 97. 

ij- mischievous, of the consequences of a, 152-169. 
|- negative and positive, 7 2 

illustrated in the case of offences against trust, 236 n. 
|- absolutely and relatively negative, 72. 
I- negative, may be expressed positively, 72. 
I- overt or exterior, 73 n. 

Sj- repeated, and a habit or practice of action, distinguished, 75. 
i - simple and complex, 75. 

- a single, what constitutes ambiguity regarding, 76. 
- an, general tendency of, how determined, 70, 71* 

- transitive and intransitive, 73 and 73 n. 

a distinction recognised by grammarians, 73 n. 
voluntary, its meaning, 82 n. 
* ction, Human, in general, 70-81. 
f control of, the principal end of punishment, 170 n. 

: when examined with a view to punishment; points to be considered, 71. 
cts, distinguished, 72-76. 

- which rest purely in the understanding, 98. 
idison, his description of religion, 121 n, 

dministration, a branch of the art of Government contrasted with that 

of Legislation, 311. 
iult, 31*1. 

lultery, the offence of, 281. 
Section, enlarged, what, 51. 
Unity, relationship by, 257. 
je, as a secondary circumstance influencing sensibility, 59. 

its periods distinguished, 59. 
jency, rational and irrational, distinguished, 71. 
jgravation, state of the consciousness, as furnishing a ground of, 96. 

grounds of, constituted by offences against trust and by falsehood, 308- 

33 8 Index. 

Alarm, a branch of the secondary mischief of an act, 153. 

none, when the person the object of attack not determinate, 162. 

due to the apparent mental attitude of the actor at the time of an act 


goodness of the motive of an act does not remove, 165. 

nature of the motive, how it affects, 167. 

disposition of the actor, how it affects, 168. 

and danger, distinguished, 157. 

their branches, 157. 

to what causes due, 157. 

sometimes, danger always contingent, 159. 
Alien, the condition of an, how constituted, 294. 

Ambassador, the trust of an, or presbeutic trust, offences affecting, 289 

injuries to an, 286 n. 

Ambition, under what class of motives it falls, 109. 

its relation to love of power and to love of reputation, n i. 
Amity, or self-recommendation, the pleasures of, their nature, 35. 

or self-recommendation, the pleasures of, motives corresponding to, i( 

the desire of, placed in the class of good motives, 119. 

how far coincident with that of benevolence, 123. 
with that of the love of reputation, 123. 
conformable to utility, 123. 

classed as a semi-social as well as a self-regarding motive, 121. 
as a standing tutelary motive, considered, 144. 

the motive of, commonly associated with that of benevolence or E 

pathy, 1 08. 

its varying effects illustrated, 108. 

how far coincident with that of benevolence, 123. 

the pleasures and pains of, and those of benevolence, distinguished, 41 
Anglo-Saxon Wer-geld, see "Wer-geld. 

Animals, cruelty to, see Cruelty. 
Animo malo, meaning of the expression, 95 n. 
Antipathetic bias and sensibility, explained, 51. 
Antipathy, occasionally causes actions with good effects, 23. 

never a right ground of action, 23. 

resentment merely a modification of, 23. 

as an inducement to punish the self-regarding offences, 306. 

connexion in the way of, as influencing sensibility, 55. 

the principle of, needs regulation by that of utility, 23. 

errs on the side of severity, 20. 

and sympathy, the principle of, its influence in exciting disapproval 

the various classes of offences, 303-305 and n., 306. 

see also Sympathy. 

Apprehension, or expectation, the pains of, 41. 

or expectation, the pains of, and those of sufferance, distinguished - 

41 n. 

Apprentice, see Master. 
Asceticism, origin of the word, 8 n. 

the principle of, what, 9. 

a partisan of, who, 9. 

why favoured by certain moralists, 9. 

followed under the name of religion, 123. 

often the ground of approbation or disapprobation of action, 10. 

its wide-spread influence upon doctrine, 10. 

Index. 339 

Asceticism, the principle of 

its small influence upon legislation, 1 1 , 12. 

religious persecution in part due to, u. 

not consistently followed in matters of government, ir, 13. 

L consistent pursuit of it impossible, 13. 
an example of a principle adverse to utility, 8. 
limited in practice to private conduct, u. 
prevents the universality of censure of the private offences. 303. 
tics, religious and philosophical, compared, 10. 
Assignable individual, an, what meant by, 205 n. 
Association, the principle of, 1247*. 

pains of, 41. 

pleasures of, analysed and illustrated, 37. 

pleasures and pains of the mind, the result of, 209 n. 

Avarice, the term, an example of the figurative sense of the term motive, 


> indicates the motive of pecuniary interest when used in a bad sense. 

under what class of motives it falls, 104. 

why properly termed a bad motive, 118, 119. 

lust, vengeance, the restraining motives to, 168, 169. 
Awkwardness, the pains of, analysed, 39. 

Bad, proper application of the term, 87. 

intention, see Intention. 

motive, see Motive. 

tendency of an act, how ascertained, 31, 32. 
Banishment, as a form of personal injury, 244, 245. 

examples of offences by, 246 n. 

as a punishment, considered, 191, 197. 

when unequable, 191. 

as a chronical punishment, 200. 
Becearia, his works noticed, 179, 329 n. 
Behaviour, good, remission of punishment for, 200. 
Beneficence, a branch of duty to others, 312. 

- how far a fit subject for legislation, 322, 323. 

- motives which prompt to, 312, 313. 

Beneficiary, beneficiendary, the terms suggested to indicate the person 

to take the benefit of a trust, 226 n. 
Benevolence, pleasures of, in what they consist, 36. 

- under what circumstances the motive of may be repugnant to utility, 


- imputed to the Deity, in what sense, 125. 

- enlarged, alone necessarily conformable to utility, 122. 

and private, examples of their operation, 129. 
the distinction between, illustrated, 135, 143. 

- public and private, contrasted, 122. 

- a tutelary motive, mode of its operation as, 143. 

Was, moral, religious, sympathetic, antipathetic, see Moral, etc. 
Uasphemous, printing or speaking, under what class of offences it falls, 

246 n. 
tlasphemy, 289 n. 

Z 2 

34 Index. 

Bodily conditions, influencing sensibility, 44, 45-47, 55, 57, 58. 
Body, radical frame or temperament of, as affecting sensibility, 55, 56. 

and mind, intimacy of the relation between, 56, 57. 

offences affecting the, distinguished, 243. 
Bonaparte, his Penal Code noticed, i8o. 
Branding, as a punishment, 200. 
Bribery, nature of the offence, 240. 

active, or bribe-giving, 240 and n. 

passive, or bribe-taking, 240, 289, 290. 

as an offence to which certain conditions are exposed, 262, 272, 274, 

278, 282, 28971., 290 n. 

see also Presents. 

Bubbles, or fraudulent companies, the offence of setting up, 253 n, 
Burning alive, as a punishment, 181 n. 


Calamity, a, what, 26, 211. 

offences through, an, 245 n., 246 . 

breaches of sanitary regulations, an example of, 212. 

precaution against, justifies the causing of mischief and makes punish 

ment groundless, 172. 
Capital punishment, 196, 197, 200. 
Caprice, the principle of, 13 n. 

how far coincident with that of sympathy and antipathy, 13 n., 15 n. 

illustrations of its influence, 1 3 n. 

Catalogue of motives corresponding to that of pleasures and pains, 105. 

see also Motives. 

Catalogus personarum privilegiatarum, its purpose, 68 n. 

Catherine II of Russia, attitude of her ministers towards trivial theological 

controversies, 2 1 n. 

Celibacy, as an offence, how classed, 288 n. 
Certainty, as a quality of punishment, see Punishment. 

and uncertainty of pleasure and pain, an important ingredient in their 

value, 29. 

Characteristicalness, as a quality of punishment, 192, 198 and n., 202 n. 
Charity, to what class of motives it belongs, 113. 
Child, the term, as indicating a legal relation, considered, 276 n. 

stealing, as an offence, 276. 

Childlessness, as modifying susceptibility to the influence of law, 54 n. 
Christianity, its establishment due to the ascendancy of the Roman 

commonwealth, 79 n. 

Chronical punishments, examples of, 200. 
Circumstances, etymology of the term, 77 n. 

what, 76, 77 n. 

attending an act, defined, 77 n. 

reasons for their investigation, 76, 80. 

states of which the perceptive faculty is susceptible in regard to, 7 

their relation to consequences, modes of, 77. 

illustrated, 78, 79 and nn. 

limited extent to which perceptible, 79, 80. 

attending an event, the author s method of analysis applicable to physical 

aa well as to moral science, 81 n. 

aggravative, 80, 308. 



; Circumstances, compensative, 90, or. 

| criminative, 80, 96, 308. 

evidentiary, 80. 

exculpative, 80. 

! extenuative, 80. 

[ pecuniary, see Pecuniary. 

preventive, 90, 91. 

- influencing sensibility, see Sensibility 
Civil Code, see Code, Law. 
Civil and penal law, see Law. 
Civil and criminal, see Procedure. 
Civil conditions, see Conditions. 
C/lass, offence against a, 206. 

, . 

Slimate, its effect upon sensibility, 45 6r. 
3ode, a civil, its contents, 333. 

*9, 333- 

Frederic, the, referred to, 333, 334. 
[ a penal, its contents, 333. 

limits between it and a civil, examined 3 2 q 223 
Coercion or restraint, one of the evils of punishment i 7 c 

- or restraint, a form of offence against the person, 243 
Coercive Law, 330. 

Joining, as an offence, 181 n. 
Collateral, relationship, 257. 

Command, every law a command or its opposite 322 
! r- a coercive law a, 330. 

Jommensurability, as a quality of punishment, 101, 202 
Common sense theory of a, as a moral standard, an example of the 

application of the principle of sympathy and antipathy 17 
Compassion, to what class of motives it belong 1 34 

iompensation or satisfaction for an offence*, as rendering punishment 

groundless, or as a reason for its abatement, 172 

- an insufficient penalty for theft and robbery, why 183 and n 

- as a subordinate end of punishment, 171 n. 

- tendency to, as a quality of punishment, 19*5 107 

- lucrative, 197. 

subserviency to, a quality of pecuniary punishment, 197 

- vindictive, 197. 

-susceptibility to admit of, as distinguishing the various classes of 

offences, 303-306. 
omplex or compound, and simple offences, 211, 243. 

- see also Offences. 

- pleasures and pains, 41 n. 

example of an analysis of, 42 n. 

- condition, see Condition. 
ompulsion, as a ground of impunity, 175. 

- or constraint, as a form of offence against the person, analysed, 243. 

simple injurious, an example of the offence of, 296. 
sometimes includes wrongful menacemenfc, 245 n. 
ondition, a, elements in the conception of, 210, 211 n., 229, 232, 233, 

2 55> 256 n., 290, 292, 293, 294. 

a, may be either beneficial or burthensome, or both, to the party 
invested with it, 229, 294, 295. 



Condition, a, implies a distinguishing appellation on the part of the person 
invested with it, 232. 

the rights and duties belonging to, considerable in duration, 233. 

character of the services connected with, a distinguishing feature of 


description of the services constituting a, 232. 

the rights to services connected with, and those under contract or apper 

taining to property, distinguished, 233. 

examples of a, 232, 294, 295. 

how constituted by the law, 292, 293. 

not an exclusive right, 293. 

and relations not amounting to a, distinguished, 232, 233, 293. 

regarded as an object of property, 210, 227, 230, 231. 

contrasted with a right of property, 229, 293. 

difficulty of distinguishing property and, 291. 

an offence against, what, 210. 

offences against, 255-296. 

how to be classed, 227 et seq. 

rules for distinguishing them from those against property, 232, 233. 

and against property, sometimes substantially the same, 229, 233, 

2 34 

why improper to class under those against property, 229. 

filial, offences against, 2 76. 

trust as a species of, 226. 

and trust, their relations, 227, 228, 290. 

public, a less expressive term than public trust, 228. 

complex, that of parent a, 275. 
Conditions, proper order of their treatment, 258. 

classed as domestic and civil, 255. 

domestic or family, how constituted, 255. 

the physical power of the domestic superior their groundwork, 

259 n. 
the legal relations they involve and their rationale, 258, 259, 260, 

offences touching, 261-266, 270-286. 

civil, examined, 287. 

their infinite variety, 287. 

some features which distinguish them from the domestic, 294, 295. 

involve no correlative relations with distinguishing appellations, 

294, 295. 

how constituted, 292, 293, 294. 
their relation to trusts, to domestic conditions, and to rights of 

ownership, 290, 291. 
non -fiduciary, 292. 
professional, 292, 293. 
rank, as one of the, 292. 
examples of, 294, 295. 
offences touching, 295, 296. 
Confinement, as a form of offence against the person, 244. 

example of offences by, 246 n. 
Connubial and post- connubial relations, 256. 

see also Belations. 

Connexion, in the way of sympathy and antipathy, see Sympathy am 

Index. OAV 

Consciousness, as to circumstances accompanying an act, what meant by, 

false as to circumstances accompanying an act, what, 7 1 . 

the, or perceptive faculty, its relation to the consequences of an act, 89. 

various states of, in regard to the circumstances attending an act 


various states of, illustrated, 90-92. 

state of the, importance of the investigation regarding, 95, 96. 
its relation to intentionality, 91. 
to the secondary evil of an act, 164. 
character of the consequences of an act in great measure dependent 

upon, 95. 

demand for punishment dependent upon its state, 95. 
Consent, on the part of an injured party, as rendering punishment ground- 
less, 171, 172. 

presence or absence of, its relation to the offences of theft, rape, 

seduction, etc., 251, 252, 253. 
Consequences, their place in relation to the tendency of acts, 70. 

material, what, 70. 

alone worth regarding, 70. 

primary and secondary, 152, 153. 

may be mischievous and secondary beneficial, 157. 

natural and artificial, 168, 169. 

and intention usually correspond, 133. 
Constitutional law, a branch of a complete body of laws, 334. 

its province, 334. 

its relation to penal and to civil law, 334. 

its matter how to be distributed, 309 n. 

Contract, breach of, under what class of offences it falls, 249 n. 

a, nature of the conception indicated, 279. 

the utilitarian basis of the matrimonial condition, 279. 

the matrimonial, modifications of which it is susceptible, 280. 
Contractual relations, and those dependent upon condition, their differ 
ences examined, 233. 

Copyright, the enjoyer of a, not invested with a condition, but with a 
species of property, 293. 

why regarded as property, 294 n. 
Corporal injuries, simple and irreparable, 244. 

insult, a complex offence, affecting both person and reputation, 247. 
Corporate body, offences against the property of a, 252 n. 
Corporation spirit, attachment, zeal or etprit de corps, 113. 
Country scene, a, the pleasures of, analysed, 42 n. 

Cowardice, to what class of motives it belongs, 116. 

Crime, to be reprobated, on purely utilitarian grounds, 9, 1311. 

Criminal law, 309, 330. 

see also Law. 

Criminative circumstances, see Circumstances. 
Cromwell, Oliver, his supposed indifference to suffering, 57. 

easily moved to tears, 57. 

Cruelty, class of motives to which it belongs, 1 14. 

to animals, rationale of legislation regarding, 311 n. 
Culpa, meaning of the term, 94, 95, 95 n. 

sine dolo, 94. 

lata, levis, levissima, the expressions criticised, 94. 

344 Index. 

Curiosity, as a motive, 107. 

its different effects illustrated, 107. 


D Aguesseau, the Chancellor, his suggestion of the phrase droit entre Us 

gens, 326 n. 
Danger, a branch of the secondary mischief of an act, 153. 

of a mischievous act, whence it arises, 155. 

and alarm distinguished, 157. 

of an act, due to the real mental attitude of the actor, 164. 

physical, as impairing the influence of the penal sanction, 174, 175. 
Death, the penalty of, see Capital Punishment. 

Declaration, the, of Independence of the United States of America, 336 

the, of Rights, of Massachusetts, 336. 

of Virginia, 335, 336. 
of North Carolina, 335. 

the phraseology of these instruments criticised, 335, 336. 
Defamation, the offence of, its nature analysed, 246. 

political, how classed, 289 n. 

reluctance under popular governments to submit it to penal 1 
lation, 319 n. 

and see Keputation. 
Defraudment, the offence of, 251, 308. 
Deity, the, qualities attributed to, 125. 

Delegatus non potest delegare, the maxim ridiculed, 1371. 
Deliberation, as an indication of the disposition of an offender, 150. 
Delicta, publica et privata, of Roman law, 300 n, 
Delinquency, offences of mere, 211. 

and see Offences, Semi-public. 

Denmark, a sect of religious enthusiasts there, noticed, 140. 
Depravity of disposition, see Disposition. 
Derivative evil of an act, what, 153. 

pains of sympathy, among the pains of punishment, 1 76. 
Derecho, a Spanish term for law in abstract, 32471. 
Descent, relationship by, 257. 

Desertion, military, the offence of, 287 n. 
Desire, pain of, a species of pain of privation, 38. 

physical, the general term for a certain motive, 105. 

sexual, the neutral term for a certain motive, 105 n. 
Detainer, of immovables, a term of English law, 255 and n. 

see also Detinue. 
Detection, what meant by, 146. 

fear of, as an element in the tutelary motive of self-preservation, 147. 

the force of certain standing tutelary motives depends upon, 146, 

uncertainty of, as diminishing the efficacy of the penal sanction, 317. 
Determinative, as a term for Motive, 98 n. 

Detinue, and detainer, as offences of English law, 250 n., 255 and?*. 
Detrectare militiam, meaning of the expression, 237, 238 ?i* 
Detrectation, as a term for a certain mode of offence, 237, 238 n., 26 

272, 274. 
* Dictates or laws of particular motives, convenience of the expression, 


v > 



Diet, scanty, why an efficacious punishment for offences through the 

motive of ill-will, 196. 

Disablement, as a result of punishment, 170, 171 n., 195, 196, 197, 202. 
Disappointment, pain of, a species of pain of privation, 38. 
Discoercive law, 330. 
Discourse, acts of, see Act. 
Disgrace, fear of, as a motive, 109. 
Dishonour, fear of, 109. 

pains of, see Ill-name. 

Displeasure, the motive of, placed in the class of bad motives, 119. 
under what circumstances social in its effects, 127. 

a motive less constant in its operation than the motives of the self- 

regarding class, 167. 
Disposition, the, the general subject of, treated, 131-151. 

what, 131. 

an element in determining the general tendency of an act, 71. 

its influence in the production of the secondary mischief of an 
act, 164. 

its effect upon alarm, 168. 

the sum of the intentions, 142. 

penal law how far concerned with, 132. 

good, bad, depraved, virtuous, vicious, beneficent, meritorious, perni 
cious, mischievous, sound, firm, application of the terms to, 131, 132. 

indications concerning, afforded by the strength of temptation, 148. 

depravity of, indicated by an offence, rules for estimating, with 
illustrations, 149, 150. 

indications of, afforded by the deliberation accompanying the 
offence, 150. 

its character a matter of inference, 132. 

the grounds of inference regarding it examined and illustrated, 

I33-I4 1 - 

its investigation, why important, 151. 

a good, coupled with a mischievous habit, impossible, 133 n. 
Division of offences, see Offences. 

Dolus, the term in Roman law, 94, 95, and 95 n. 
Droit, a French term for law in abstract, 32471. 

entre les gens, instead of droit des gens, suggested by the Chancellor 

D Aguesseau, 326 n. 

Drugs, sale of unwholesome, under what class of offences it falls, 246 n. 
Drunkenness, its place in a classification of offences, 246 n. 

and see Intoxication. 

Duel, refusal to fight a, why associated with cowardice, 109 n. 

a, bribery at an election, munificence in charity, war, alike results of a 

single motive, no. 

Duelling, motives to and against, examined, 109 n. 
Dumplers, a religious society, noticed, n. 
Duration, as an element in pleasure, and pain, 30. 

illustrated, 32. 
Duress, 254 n. 

and see Compulsion. 

Duty or obligation, implied in the conception of right, 224^,, 225 w. 

absolute, one without reciprocity of right, 290. 

relative, 290. 

breach of, as a term for a form of offence, 262, 263, 266, 271, 272, 274, 

276, 278, 282. 

346 Index. 

5, love of, as a motive, 117. 

as a motive, among those most constant in their operation, 167. 

different acts to which it conduces, u/, 118. 

as an occasional tutelary motive, 146. 

appropriate punishment for offences induced by, 196. 
Economical effects of a religious persuasion, 64 n. 
Education, a branch of the art of government, 311. 

public, 312. 

private, 270, 312. 

physical, mental, 61. 

as influencing sensibility, 45. 60, 61. 

as influenced by religions profession, 64. 

Election, the doctrine of, as a substitute for a moral standard, 17 n. 
Elopement, as an offence, 262, 271, 272, 274, 276. 
Embezzlement, as an offence, 250, 252. 

appropriate punishment for, 196. 

breach of trust, an element in the offence of, 250. 

and theft, the different penalties for, their rationale suggested, 172 n. 
Emigration, as an offence, 288 n. 

Endamagement, an offence against property, 250. 

and see Propsrty. 

Enjoyment, pleasures of, and those of expectation, distinguished, 36, 37. 
Enmity, pains of, analysed, 39. 

pains of, and those of malevolence, distinguished, 41 n. 
Ennui, nature of the pain indicated by the term, analysed, 39 n. 
Enthusiasm, or enthusiastic zeal, in. 

Entry, forcible, 254, 255. 

Equability as a property of punishment, 190, 191. 

Equable, punishment, what, 190. 

Equity, natural, as a moral standard, 17 n. 

Error of opinion, fitting mode of dealing with it, 177. 

culpabilis, and other phrases, suggested to indicate certain menti 

attitudes, 95 n. 

Espionage, as a public offence, 286 n. 
Esprit de corps, English equivalents for the phrase, 113. 
Esse, motive in, what, 99, 100. 
Ethics, in general, denned, 310, 312. 

private, what, 270, 309, 310. 

and legislation, limits between, 309-323. 

the leading branches of, 312. 

place of, in cases unmeet for legal punishment, 314. 

the rules of, their dependence upon preceding legislation, 322. 
Events, the consequences of acts, 77. 
Evidentiary circumstances, 80. 

Evil and good, of a third order, aa the result of an act, 163 n. 
Example, a leading end of punishment, why, 171, 193, 195. 

a more important object in punishment than the reformation of the 

offender, 200. 

Exciting cause, what so termed, 44. 
Exculpative circumstances, what, 80. 
Executive, the, a branch of sovereign power, 

Index. 347 

Exemplarity, as a property of punishment, 193, 194, 195, 200, 202. 
Exemption from punishment, various grounds of, and their rationale 

examined, 173, 174, 174%, 175, 176, 177. 
Expectation, pleasures of, analysed, 36, 37. 

or apprehension, pains of, 41. 
Extenuative circumstances, what, 80. 

Extent, as an element in the value of pleasure and pain, 30. 
Extortion, the offence of, analysed, 251. 
Extra-regarding and self-regarding pleasures and pains, 41, 41 . 


False consciousness, see Consciousness. 

news, dissemination of, an example of a semi-public offence, 24671., 

253 n. 
Falsehood, as an element in offences against property, 247. 

offences by, one of the divisions of multiform offences, 208. 

proper method of classifying, 207 n., 223. 

their divisions. 221, 222. 

their subdivisions, 222, 223. 

their points of agreement and difference, 221, 222. 

and concerning trust, their connexion, 242. 

unproductive of material results, no offence, 223. 

Fame, love of, as a motive, see Reputation. 

Family spirit, or attachment, the motive to which it belongs, 113. 

spirit, or attachment, its influence, 54. 

or domestic relations, 255-286. 

natural, 256, 257, 258. 
Fanaticism, or fanatic zeal, motive indicated by the terms, in. 

lack of restraining motives to, i68n. 

Fecundity, or fruitfulness, an element in the value of pleasure and pain, 


Felton, his assassination of the Duke of Buckingham used to illustrate the 
relation borne to its consequences by the circumstances attending 
an act, 78. 

Fiat justitia ruat ccelum, the maxim ridiculed, 14 n. 
Fidei-commissarius, 2 26 re. 
Filial condition, the, offences concerning, 276-278. 

offences concerning, features which distinguish them from offences 

against other conditions, 276, 277. 
offences concerning, their correspondence with offences touching 

the condition of parental ity, 277. 
Filiality, or filiation, the terms considered, 276^. 

the relation of, 257. 
Fine, see Punishment, pecuniary. 
Firmness of mind, as influencing sensibility, 48, 48 n. 
1 Fitness of things, the, as a moral standard, an example of the application 

of the principle of sympathy and antipathy, 17 n. 
Forbearance, service of, 292. 

Force, as an element in offences against property, 248. 
in offences against the person, 253. 
in the complex offences concerning property and person together, 

the element of, as distinguishing robbery from theft, 251. 

348 Index. 

Force, physical, the groundwork of the family relations, 259 n. 

the public, offences against, 218, 287 n. 

and see Offences. 

Forcible seduction, see Seduction. 

entry, see Entry. 

detainer, see Detinue, Detainer. 
Foreigners, offences against, 2867^ 
Forgery, the offence of, 222. 
Form of laws, its importance, 335 n. 

of laws, mischievous results of its present imperfection illustrated, 

335 n - 
Fraud, the conception analysed, 251. 

mercantile, its lenient penal treatment in legal systems, as contrasted 

with that of other offences of the same class, rationale of suggested, 

against the coin, 181 w., 183. 

sale of bad bread an example of, 296. 

Fraudulency, as characterising a species of offences against property, 

Fraudulent, the term, when applied to offences against property, 247. 

obtainment or defraudment, 251. 
Frederic II of Prussia, his Code, 333 n. 

Frugality, as a quality of punishment, 194, 195, 196, 202. 


Gaming, as an offence, 253*1., 29371. 

Gentoo religion, regard shown by, for the interests of the inferior anim 

310 n. 

Gentilhomme, the condition of, in what it consists, 294. 
Gesetz, its meaDing contrasted with that of Recht, 32471. 
Glory, love of, 108, no. 

see also Reputation. 

God, the will of, as a standard of right and wrong, 21, 22. 

see also Theological principle. 

the fear of, the love of, under what class of motives they fall, in. 

offences against, distinct from those against religion, 220 n. 
Gondemar, Spanish ambassador at the Court of James I, 32771. 
Good, proper sense of the term, 31, 87. 

and bad sense, meaning of the phrases, 103. 

of a third order, 163 n. 

as the result of an act producing primarily evil, example of, 157, 16371. 

producing primarily good, example of, 1637*. 

intention, see Intention. 

motive, see Motive. 

name, pleasures of a, in what they consist, 35. 

as a motive, 108. 

different terms for, 108. 

varying effects of, illustrated, 109. 

see also Reputation. 

tendency of an act, how ascertained, 31, 32. 

will, placed in the class of good motives, 119. 

classed as a purely social motive, 121. 
standing tutelary motive, 143. 


Good-will, the motive most conformable to utility, 121. 

under what circumstances its dictates maybe adverse to utility, 122 
tendency to deprive of the services consequent upon, the gist of 
an offence against reputation, 210. 

Government, the, what, 218. 

its necessity, 214 n. 
- its end, 70. 

the operations of, their proper aim, 215. 

forms which attacks upon may assume, 214, 215, 217. 

as an influence upon sensibility, 63. 

the educational influence of, 63. 

operates by punishment and reward, 70. 

the art of, what meant by, 310. 

comprises legislation and administration, 311. 

self, the province of private ethics, 270, 310. 
Gratitude, to what class of motives it belongs, 113. 

Greek nomenclature for the classification of offences, its convenience ad 
vocated, 287, 288. 

Grief, external indications of, fallacious, 57. 
Grotius, his works noticed, 329 n. 
Guardian, and ward, the relation of, one of the family conditions, 260. 

and ward, the relation of, its rationale, 266, 267, 268, 269. 

nature, extent, and duration of his powers and duties, 269, 270, 271. 

detail of his powers insusceptible of exact definition by legislation/ 2 70. 

points of resemblance between the condition of, and that of parent and 

husband, 275, 280. 

the condition of, offences affecting, 270-272. 
Guardianship, a private trust, 270, 272. 

the perpetual, of women, 268 n. 

offences affecting, 270-272. 

who liable to be placed under, 267, 268. 


Habit or practice, a, what, 12451. 

or practice, a, distinguished from a repetition of acts, 75. 

distinguished from a repetition of acts, and from an aggregate 
of acts, 75 n, 

of offending, to be considered in the adjustment of punishment to 

offences, 183, 184. 

ffabitual occupation, as influencing sensibility, 44, 51. 
offences as a subject of punishment, 183. 
Elappiness, in what it consists, 70. 

general ethical rules upon which it depends, 312. 

concurrent requisites to the production of, 267. 

the principle of the greatest, as a phrase alternative to that of the 

principle of utility, i n. 

hardiness of body, as influencing sensibility, 44, 46, 47. 
Sarmony of sound, in legal maxims, preferred to sense, 14, 15. 
Castings, Warren, referred to, 14 n. 
ilealth, as influencing sensibility, 44, 45. 
Seedless act, a, what, 89. 

leedlessness, a mode of unadviseduess as to the circumstances attending 
an act, 92. 



Heedlessness, Latin phrases indicating, 95 n. 

its influence upon alarm, 165. 

in the exercise of judicial trust, 286n. 
Helvetlus, referred to, 104 n. 

Hercules, his deliverance of Theseus discussed, 1 13 n. 

Heresy, as an offence, 289 n. 

Hindoo, see Gentoo. 

Homicide, its place in a classification of offences against the person, 245. 

through the motive of religion, not therefore innocent, 165 n, 
Hunger and thirst, as motives, 105 and w. 

Husband, what, 278. 

rationale of the powers with which he is invested, 279. 

relation of to the wife, a complex condition, 280. 

the condition of, its resemblance to and difference from that of parent, 


and wife, the relation of, examined, 278. 

its utilitarian basis, consent, 279. 

involves a reciprocity of right and duty, 279. 

different rules regarding it, in Mahommedan and in Christian 

countries, 280, 281. 

offences to which the condition is liable, 280-282. 
modifications of which the contract between them is susceptible, 280, 

I. . 

Idiosyncrasy, the term explained, 56 n. 

Idleness, as an offence, 25371., 288 n. 

Ignominy, fear of, nature of the motive, 109. 

Ignorance or knowledge, as influencing sensibility, 47, 48. 

Ignorant, what meant by, 48. 

Ill-name, the pains of, terms indicating, 39. 

analysed, 39. 

positive, illustrated, 39 n. 
Ill-will, see Malevolence. 

Imagination, pleasures of the, in what they consist, 36. 
pains of the, 40, 41. 

Immoral publications, the offence of issuing, how classed, 289 n. 
Immovables, examples of offences specially concerning, 24571., 254, 251 
Imperfection, bodily, as influencing sensibility, 44, 47. 
Impey, Sir Elijah, referred to, 14 . 
Imprisonment, as a punishment, 197. 

example of some of the evils resulting from, 42 n. 
Imprudentia, a term for unadvisedness, 95 n. 
Impunity, the grounds of, 171-177. 

see also Punishment, cases unmeet. 
Incendiarism, as an offence, 181 n., 255 n. 
Incest, as an offence, 247 n. 

Inclination, bent of, as influencing sensibility, 49. 

and bias of sensibility, distinguished, 49. 
Incontinence, as an offence, 247 n. 
Incorporeal objects, regarded as property, 231. 

property, copyright an example of, 293, 294. 

condition, reputation, liberty regarded as species of, 231. 


Inducement, a more comprehensive term than motive 97 n 


stimulus to, among the beneficial consequences of a third order 

from a good action, 163 n. 
Inefflcaciousness of punishment, 172-175, 315. 

see also Punishment. 

Infamy, fear of, nature of the motive, 109. 

Infancy, as impairing the efficacy of punishment, 173 aic 

rationale of its subjection to guardianship, 267. 
Informers, prejudice against, irrational and mischievous, i ao 
Infortunium, meaning of the term, 94. 

Ingratitude, whether a fit subject for penal legislation, 318. 
Injury, simple lascivious, and rape, distinguished, 253. " 
Inobservantia, a term for unadvisedness, 95 n. 
Insane, the, calculate consequences, 188 and n. 
Insanity, as a ground of impunity, 1 73. 

as affecting sensibility, 51. 

little variety in, 51. 

rationale of its subjection to guardianship, 267. 
Inscitia, as a legal term, its meaning, 95 n. 

culpabilis and inculpabilis, the expressions suggested, 95 n . 
Insolvency, nature of, as an offence, examined, 248 and n. 
Instruction, the proper remedy for offences of opinion, 177. 
Insult, corporal, as an offence, 247, 254. 

Insulting menacement, 247, 254. 

Intellectual powers, the, strength of, as influencing sensibility, 44, 48. 

faculty, the, and the will, contrasted, 97. 
. Intention, what it concerns, 82. 

identified with will/ 82. 

: its relation to the consequences of an act, 71, 133. 

and motive, confused, 93. 

motives the causes of, 142. 

the terms good and bad as applied to, considered and illustrated, 87. 88 

92, 93, 120. 

good, though both motive to and consequences of the act, bad, 93, 94. 

innocent, when may be so termed, 94. 

as determining the character of an offence, illustrated, 250, 251. 

absence of, a ground of extenuation, 96. 
Intentional, its meaning, 82. 

when synonymous with voluntary, 82. 
Intentionalitas, the term suggested, 95 n. 
Intentionality, the general subject of, examined, 82-88. 

uses of a minute analysis of, 84 n. 

importance of the investigation, 133. 

its connexion with consciousness, 91. 

its relation to the various stages of an act, 83. 

the mental attitude in respect of, minutely analysed, 83 n. 

in reference to an act, and to the consequences of an act, distinguished, 


its influence upon the mischief of an act, 163, 164. 

its various modes, 84, 85. 

illustrated, 85, 86, 87. 
Intentions, the consequence of motives, 93, 142. 

35 2 Index. 

Intentions : 

disposition, the sum of the, 142. 
Interest, self, the only adequate motive, 313. 

Interesting perceptions, a general expression for pleasures and pains, 3 
Internal jurisprudence, see Jurisprudence. 
International, a novel term, 326. 

law, a phrase more expressive than law of nations, 326. 

its province, 327. 

distinguished from internal, 32771. 
Intoxication, as illustrating the forms which the mischief of an act may 
assume, 159. 

a temporary insanity, 173. 

as rendering punishment inefficacious, 173, 315. 

not a ground of absolute impunity, 17311. 
Inundation, criminal, as a semi-public offence, 255 n. 
Invasion, the offence of contributing to bring about, 215. 
Investitive event, or circumstance constituting the ground of title, 


and divestitive, the terms, 289 n. 

Involuntariness as a ground of exemption from liability, 175. 
Involuntary act, an, why not alarming, 164. 
illustration of, 89 n. 

see also Unintentional. 

Irritability, in relation to sensibility, what, 46. 

contrasted with hardiness, 46. 

with firmness, 48. 


James I, his antipathy to the Arians, 2 on. 

his book against Vorstius, 20 n. 

his Counterblast to Tobacco/ 21 n. 

Judge, the, his office in giving effect to circumstances influencing sensi 
bility, 65, 182. 

Judge-made law, English, its introduction into India reprobated, 1411. 
Judgment, a, what, 2611. 
Judicial sentence, beyond the law, as rendering punishment inefficacious, 


Judicial trust, see Trust. 
Judiciary or common law, xii, 335 n. 
Jurisprudence, its branches, 323-330. 

ancient, and present (or living), 328. 

censorial, 324. 

civil and penal, 329. 

expository, 324, 325. 

authoritative, or unauthoritative, 324, 325. 
history of, its uses, 328, 329. 
internal, its subject-matter, 327. 

subdivided under national and provincial, 327. 

distinction between it and international, illustrated, 327 n. 

local (or particular), 325, 327, 328. 

municipal, senses of the term, 32871. 

statutory and customary, terms indicating the mode of expression of 

the laws, 329. 

universal (or general), 325. 



Jurisprudence, universal 

examples of topics falling under, xi, 326. 

circumstances determining the distribution of its subject-matter, 


Jus, meaning of the term contrasted with that of Lex, 324 n. 
Justice, the dictates of, what, 12611. 
\ its dictates and those of benevolence, supposed conflict between, 125, 

1 26 nn. 
an offence against, what, 213, 218. 

and police, intimate though distinguishable connexion of their functions, 


offences against, 286 n. 
Justinian, his legislation noticed, 32411. 


Knowledge, as influencing sensibility, 44, 47. 

Knighthood, as a civil condition, the elements constituting it, 292. 

Labour, penal or hard, as a reformatory punishment for certain offences, 

as a chronical punishment, 200. 
Lage, the Anglo-Saxon term, its meaning, 324. 
Lasciviousness, motive indicated by the term, 106. 
Law, conception of, its necessary imperativeness, how obscured, 332. 
implies that of an offence, 333. 

science of, its relation to the art of legislation, xiii. 

a branch of the l logic of the will, xiii. 

a command or its opposite, 332. 

r civil, its relation to penal, vii, 309, 333. 

penal, its unmethodical character in systems generally, 300 n. 

its subject, 70. 

common or judiciary, xii, 335. 

its necessary uncertainty, 335. 

coercive, discoercive, declaratory, simply imperative, punitory, their 

features and relations explained and illustrated, 330, 331. 

constitutional, a necessary branch of a complete body of law, 334. 

its relation to the other branches of the body of law, 334. 
its province, 334. 

- a, ex post facto, punishment inflicted by, inefficacious, 173, 315. 

- a, unpromulgated, 173, 3 1 5. 

judge-made, 1471. 

- moral obligation of obedience to bad, the question suggested, 322 n. 

- obligation the necessary consequence of law in its operation, 258. 

- the term, its abstract and concrete senses, 32471. 

terms in different languages to indicate, 324 rc._ 

lack of an English word to express the distinction, 324 n. 

- a, what, 330 n. 

a, distinguished from a statute, 330 n. 

- a declaratory, not strictly a law, 330 n. 

- the, what indicated by the term, 324. 
jaws, the result of mutual fear, 311 n. 


354 Index. 

Legge, the Italian term for law in concrete, 324. 

Legislation, art of, a branch of the science of jurisprudence, 323. 

a branch of the art of government, 311. 

and administration, distinguished, 311. 

virtues and vices as such, why not a fit subject for penal, 316-323. 

and ethics, their relation, the general subject treated, 309-323. 

the form of, its importance, 335. 

its present imperfection, 335. 

results of its unscientific character, illustrated, 335. 

limits of its interference with human action, 270, 314. 

religion as a subject of, see Keligion. 

the science of, scheme of a complete series of works upon, x. 

what it properly comprises, vii. 

its aim or province, 170, 323. 

Legislative, the, a branch of sovereign power, 289 n. 
Legislator, rules to guide him in the adjustment of punishment to offenc 


Legitimation of children, by the subsequent marriage of parents, 2 76. 
Ley, a term for law in concrete, 324 n. 
Libel, what, 221 . 

see also Defamation. 

Liberty, regarded as an incorporeal object of property, 231. 

a corresponding term to privilege, immunity, exemption, 263. 

Life, the love of, among the motives most constant in their operation, 167. 

Lineage, see Race. 

Loi, a term for law in concrete, 324 n. 

Love, various senses in which the term is employed, 106 n., 113. 

Louis XIV, his religious persecutions, 140. 

his Code Noir/ 311 n. 

Lust, an unneutral term for a certain motive, 104, 118, 119. 

neutral phrase for the motive indicated by the term, what, 105 . 

why properly termed a bad motive, 118, 119. 


Madmen, see Insane. 

Magistrate, the parent a kind of deputy of the, 63. 

the, a kind of tutor to the members of the State, 63. 

see also Government. 

Mahommedan religion, the, regard for the inferior animals shown by, 

310 n. 
Malevolence, synonyms for the term, 36. 

pleasures of, in what they consist, 36. 

motive corresponding to, various terms for, 114. 

the motive of, examples of the different actions produced by, 114, 115. 

as a motive not always indicative of a bad disposition, 141. 

the pains of, analysed, 40. 

Malo animo, meaning of the expression, 95 n. 

Mandeville, referred to, 104 w. 

Maria Theresa, the Empress, her penal legislation noticed, 333. 

Marital condition, nature of the obligations it involves, 278. 

see also Husband. 

Married state, the, as influencing sensibility, 54 n. 
Marriage, relationship by, what so termed, 257. 

Index. 355 

Marriage, nature of the relation, examined, 278-281. 

its basis, contract, 279. 

chance of advancement through, among the advantages incident to 

certain relations, 285. 

incapacity to contract, among the disadvantages incident to certain 

relations, 286. 
Master, the, condition of, 261-263. 

under what circumstances one of obligation, 261. 

points of resemblance between it and that of parent, and of husband, 

275, 280. 

involves no fiduciary relation, 262. 
offences to which it is exposed, 261-264. 

offences to which it is exposed, their correspondence with those 
touching the condition of servant, 265. 

and servant, rationale of their legal relations, 260. 

modes of the relation, 263. 

and apprentice, the relation of, a civil condition, 262 n. 

a mixed condition, 262 n. 
Mastership, see Master the condition of. 
Material, meaning of the term, 70, 77, 98. 

circumstances, see Circumstances. 

consequences, see Consequences. 
Maternity, 257, 276n. 
Matrimonial contract, 280. 

relations, 280. 

sea also Husband and wife. 

Means, a man s, what comprised under the term, 52. 

th. 3 relation borne by, to wants, constitute the pecuniary circumstances, 

Mechanical invention, as a consequence of the motive of the love of ease, 

Member of Parliament, his character why likely to be comparatively good, 

Memory, pleasures of the, 36. 

pains of the, 41. 

Menace, see Menaoement, Threat. 

Menacement, as a form of offence against the person, 244. 

wrongful, 245 and n. 

how related to restrainment and compulsion, 246 n. 
examples of semi-public offences by, 246. 

insulting, a complex offence, against person and reputation, 247, 254. 
Mental conditions as influencing sensibility, 47, 48, 51, 56. 

injuries, simple, what, 244, 245, 246 n. 

attitude, its relation to the secondary evil of an act, 163, 164, 105. 
Mercantile fraud, see Fraud. 

Method, logical, its utility, 204 n. 

the value of that adopted in the division of offences, 299-302. 
Military, or public force, the, offence against,_ 217, 286 n. 
Militiam detrectare, meaning of the expression, 237 n. 
Mind, act of the, what, 47. 

radical frame or temperament of the, as influencing sensibility, 55. 

and body, both alike objects of offence against the person, 243, 2-45 

their intimate relation, 56. 
Misadvised act, a, what, 90. 

A a 2 

356 Index. 

Misadvisedness as to the circumstances accompanying an act, modes 
of, 90. 

Latin terms for, 95 n. 

its influence upon secondary mischief, 165. 
Mischief of an act, what, 152. 

primary and secondary, 153, 302, 304, 305, 306. 

either original or derivative, 153, 305. 
the secondary, of what it consists, 153. 
how influenced by disposition, 1 68. 
when at its maximum, 165. 
its first branch (alarm) sometimes, its second (danger) always, 

contingent, 159. 

example, showing the various forms it may assume, 154. 
examined, by reference to its nature, its cause, the party the object 

of it, and the forms it may assume, 158, 159. 
self-regarding and extra-regarding, 159. 
private, semi-public, public, 159. 

its forms illustrated, in the case of intoxication and in the 
payment of a tax, 159, 160. 

of an offence, affected by the character of the motive, 130. 

of a third order, as the consequence of an act, 163 n. 

where none, punishment groundless, 171. 

where outweighed, punishment groundless, 171. 

under what circumstances it is outweighed, 172. 

none, where consent of the sufferer given, 171. 

character of the, caused by offences of the different classes, 302-307. 
Mischievous act, consequences of a, 152-169. 

how one tends to produce another, 155. 
Mis-supposal, a, what, 90. 

as a ground of extenuation, 96. 

or mistake as a ground of exemption from punishment, 1 74. 

its influence upon the secondary mischief of an act, 165. 

importance of its investigation, 1 33. 
Mistake, see Mis-supposal. 
Monarchy, pure and mixed, 290 n. 

Monastic condition, a possible example of a useful relation of absolute 

duty, 290. 
Monopoly, 232. 

copyright a species of, 293. 

Montesquieu, his works noticed, 181, 185 n., 192, 32911. 

his speculations on the theory of punishment, noticed, 185 n. 
Moral influence, see Ethics. 

lesson, how punishment operates as a, 184. 

sanction, the, see Sanction. 

pleasures of, see Good-name, Keputation. 
pains of, see Ill-name. 

sense, the theory of a, an example of the application of the principle of 

sympathy and antipathy, 1 7 n. 

principles, mischievous, see Opinion. 

sensibility, what, 49, 50. 

and moral bias, distinguished, 50. 
Morals, private, see Ethics. 

Moralists, favour shown by some to the ascetic principle, 9. 
Moravians, a religious society noticed, n. 


Motion, as related to intentionality, 83 n. 
Motive, the general subject of, considered, 97-130. 

the general subject of, utility of its investigation, 97, 129, 130. 

the term, its widest sense, 97. 

ambiguous sense of, 98. 

figurative and unfigurative senses of, 98. 

inducement a more comprehensive term for, 97 n. 

merely pleasure or pain operative in a certain manner, 101 n. 

necessarily refers to action, 99. 

the cause of intention, 88, 142. 

mode of its operation so as to cause action, 99. 

practical, what, 98. 

to the understanding, how it may influence the will, 101. 

interior and exterior, 99. 

in prospect and in esse, 99, 100, 101. 

or.cause productive of action, to be distinguished from ground of ap 

proval of action, 22, 23. 

or temptation to an act, what constitutes it, 41. 

its tendency to cause a repetition of like acts, how calculated, 167. 

its relation to the general tendency of an act, 7 r . 

its place in furnishing indications as to the disposition, examined, 1 34- 


dependence of the disposition upon it, 142. 

general efficacy of a species of, how measured. 167. 

the reformatory character of punishment, how related to, 195. 

good and bad, the terms as applied to, 101, 102, 102 n., 103, 118, 119, 

120, 129, 130, 166, 167. 

inconvenience of so classing, 119 
none constantly so, 101-105. 

good or bad, none constantly so, demonstration of this proposition, why 

difficult, 103. 

none constantly so, illustrations of the proposition, 106, 107, 108, 

109, no, 118. 

under what circumstances motives may be so styled, 102, 118, 120. 
only by reference to its effects, 102. 
by reference to the resulting intention, 1 20. 
what motives may be so distinguished, 119. 

the same, may produce any sort of action, 102, 103, 118, 128. 

illustration of this, 106-118. 

relation of, to the secondary mischief (alarm and danger) of an act or of 

an offence, 130, 164, 165, 166. 

goodness of, does not take away but sometimes enhances the secondary 

mischief of an act, 165, 166 and nn. 

badness of, does not take away the secondary good consequences, 166. 

when an aggravation of the mischievousness of an act, 166. 
the degree of aggravation produced by, how calculated, 167. 

bad, sometimes productive of less secondary mischief than good, 166 n. 
Motives, with what description of, the analysis is concerned, 98. 

catalogue of, corresponding to those of pleasures and pains, 105-1 21. 

names applied to, often beg the question of the quality of the, 104. 

advantage of neutral appellations for, 105 n.